UPC CFI 115/2024, UPC CFI 377/2024 – Hartmann Packaging A/S v Omni-Pac Ekco GmbH Verpackungsmittel and Omni-Pac GmbH Verpackungsmittel

Expert Commentary

Full Decision Text

1Local Division Düsseldorf UPC CFI 115/2024 UPC CFI 377/2024 Decision of the Court of First Instance of the Unified Patent Court, delivered on 15 October 2025 concerning 2 755 901 B1 LEADING PRINCIPLES: 1. The term "the same invention" in Article 87 EPC must be interpreted as meaning that a claimed invention is to be regarded as the same invention as the invention in an earlier application if the skilled person can derive the subject-matter of the claim directly and unambiguously from the earlier application as a whole using general technical knowledge. This standard corresponds to the disclosure standard for inadmissible extension. 2. In principle, a person skilled in the art is accustomed to selecting a suitable material from among those known to be suitable for a particular purpose. The selection of a material from a narrowly defined range of possible suitable materials available to the person skilled in the art does not normally require any special skills and therefore does not constitute an inventive step. KEYWORDS: Priority; inventive step; equivalence HEADNOTES: 1. The term ‘the same invention’ in Article 87 EPC is to be interpreted as meaning that a claimed invention is to be regarded as the same invention as the invention in an earlier application if the skilled person can derive the subject-matter of the claim directly and unambiguously from the earlier application as a whole using common general knowledge. This standard corresponds to the disclosure standard for added matter. 2. In principle, the skilled person is accustomed to selecting the most suitable material for a particular purpose from among those known to be suitable. Selecting a material from a limited range of suitable materials available to the skilled person does not usually require special expertise and is not deemed to be an inventive step. KEYWORDS: Priority; inventive step; equivalence2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 2Claimant: Hartmann Packaging A/S (formerly Brodrene Hartmann A/S), represented by Torben Rosenkrantz- Theil, Ornegardsvej 18, 2820 Gentofte, Denmark represented by: Dr Anton Horn, lawyer, Birthe Struck, LLM, lawyer, Georg-Glock-Straße 4, 40474 Düsseldorf, Germany electronic delivery address: a.horn@heuking.de b.struck@heuking.de Contributor: European Patent Attorney Jan Sørensen; Schou A/S, Hausergade 3, 1128 Copenhagen, Denmark defendant: 1. Omni-Pac Ekco GmbH Verpackungsmittel, represented by its managing director Pablo Libreros, An der Kaje 1, 26931 Elsfleth, Germany 2. Omni-Pac GmbH Verpackungsmittel, represented by its managing director Pablo Libreros, Am Tidehafen 5, 26931 Elsfleth, Germany represented by: Dr Christof Augenstein, solicitor, Nicole Schopp, Bahnstraße 16, 40212 Düsseldorf, Germany Electronic delivery address: augenstein@katheraugenstein.com schopp@katheraugenstein.com Contributing: Patent Attorney Claus Becker, Solicitors and Patent Attorneys at GLAWE DELFS MOLL Partnerschaft mbB, Rothenbaumchaussee 58, 20148 Hamburg, Germany PATENT AT ISSUE: European Patent No. EP 2 755 901 B1 PANEL/CHAMBER: Judicial panel of the Düsseldorf local division PARTICIPATING JUDGES: This decision was announced with the participation of Presiding Judge Thomas as rapporteur, legally qualified Judge Dr Schumacher, legally qualified Judge Kupecz and technically qualified Judge Schenk. LANGUAGE OF THE PROCEEDINGS: German SUBJECT MATTER: Action for infringement and counterclaim for annulment2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 3 BRIEF DESCRIPTION OF THE FACTS: 1. The claimant is suing the defendant for infringement of the German, French and Dutch parts of European patent EP 2 755 901 B1 (hereinafter: patent at issue). 2. The patent at issue was filed on 11 September 2012 in English, the language of the proceedings, and the notice of filing was published on 27 July 2014. The notice of grant was published on 21 February 2018. The contested patent, which claims priority from EP 11181004 of 13 September 2011 and PCT/IV2012/054229 of 21 August 2012, is in force in Germany, France and the Netherlands. No preliminary objection was filed with the European Patent Office against the grant of the patent at issue. 3. After initially declaring an opt-out for the patent at issue, the claimant withdrew this opt-out on 14 March 2024. 4. The patent at issue is entitled "A display and distribution package for eggs". Its patent claims 1 and 6 read as follows in the English language of the proceedings of the patent at issue: Claim 1: "A display and distribution package (2) for eggs, said package being formed of a fibrous material, the package (2) comprising: - a bottom part (4) comprising a plurality of egg-receiving compartments (8) having non-planar side surfaces so as to match at least partially the outer contours of an egg, the plurality of compartments (8) being arranged in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a back surface (14), and two substantially planar end surfaces (18), - the cover part (6) being permanently connected to the bottom part (4) by a hinge (16) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position, - said cover part (6) comprising partial ovoid portions (20) extending outwardly from the two substantially planar end surfaces (18), wherein each of the two substantially planar end surfaces (18) apart from the ovoid portions (20) completely spans the entire end surfaces of the cover part (6), - the bottom part (4) comprising a back side (22), a front side (24), two end sides, and at least one upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4), - the cover part (6) being provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), characterised in that the upwardly extending retention projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with one or more cooperating apertures (30) in the front surface (12) of the cover part (6), - the nose (28) not extending beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 4 Claim 6: "A method of manufacturing an egg package (2) by suction moulding of a fibrous material, the package (2) comprising: - a bottom part (4) comprising a plurality of egg receiving compartments (8) having non-planar side surfaces so as to match at least partially the outer contours of an egg, the plurality of compartments (8) being formed in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a back surface (14), and two end surfaces (18), - the cover part (6) being permanently connected to the bottom part (4) by a hinge (16) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position, - the bottom part (4) comprising a back side (22), a front side (24), two end sides, and an upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4), the cover part (6) being provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), the method being characterised by the following features of the package: - the upwardly extending retention projection (26) having a downwardly and outwardly extending nose (28) for locking engagement with a cooperating aperture (30) in the front surface (12) of the cover part (6), - the nose (28) not extending beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position, and the method being further characterised by the method steps of: - placing said retention projection (26) and cooperating aperture (30) relative to each other during moulding of the egg package (2) in a moulding form, such that deformations in the cover part (6) during manufacture are compensated for, - removing the egg package (2) from the mould, and - drying said egg package (2) in an oven." 5. In the registered German translation, claims 1 and 6 of the contested patent are worded as follows: Claim 1: "Display and delivery packaging (2) for eggs, wherein the packaging is made of a fibrous material, wherein the packaging (2) comprises: - a base part (4) comprising a plurality of egg-receiving compartments (8) having non-planar side surfaces to at least partially correspond to the outer contours of an egg, wherein the plurality of compartments (8) are arranged in at least two parallel rows,2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 5 - a cover part (6) comprising a top surface (10), a front surface (12), a rear surface (14) and two substantially planar end surfaces (18), - wherein the cover part (6) is permanently connected to the base part (4) by a hinge (16) between the rear surface (14) of the cover part (6) and the base part (4) to allow the cover part (6) to move between an open position and a closed position, - wherein the cover part (6) comprises partially egg-shaped parts (20) extending outwardly from the two substantially planar end surfaces (18), each of the two substantially planar end surfaces (18) completely spanning the entire end surfaces of the cover part (6) apart from the egg- shaped parts (20), - wherein the base part (4) comprises a rear side (22), a front side (24), two end sides and at least one upwardly extending retaining projection (26) extending from the front side (24) of the base part (4), - wherein the cover part (6) is provided with a label (42) covering the ceiling surface (10) and a substantial part of the front surface (12) of the cover part (6), characterised in that the upwardly extending retaining projection (26) has a downwardly and outwardly extending lug (28) for locking engagement with one or more cooperating apertures (30) in the front surface (12) of the cover part (6), - wherein the nose (28) does not extend beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position. Claim 6: "Method for manufacturing an egg packaging (2) by suction moulding a fibrous material, wherein the packaging (2) comprises: - a base part (4) comprising a plurality of egg-receiving compartments (8) having non-planar side surfaces to at least partially correspond to the outer contours of an egg, the plurality of compartments (8) being arranged in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a rear surface (14) and two substantially planar end surfaces (18), - wherein the cover part (6) is permanently connected to the base part (4) by a hinge (16) between the rear surface (14) of the cover part (6) and the base part (4) to allow the cover part (6) to move between an open position and a closed position, - wherein the base part (4) comprises a rear surface (22), a front surface (24), two end surfaces and an upwardly extending retaining projection (26) extending from the front surface (24) of the base part (4), wherein the cover part (6) is provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), the method being characterised by the following features of the packaging:2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 6 - the upwardly extending retaining projection (26) has a downwardly and outwardly extending tab (28) for locking engagement with a cooperating opening (30) in the front surface (12) of the cover part (6), - wherein the nose (28) does not extend beyond the front surface (12) of the cover member (6) when the cover member (6) is in its closed position, and the method is further characterised by the following method steps: - Positioning the retaining projection (26) and the cooperating opening (30) relative to each other during the moulding of the egg packaging (2) in a casting mould in such a way that deformations in the cover part (6) are compensated for during manufacture, - removing the egg packaging (2) from the mould, and - drying the egg packaging (2) in an oven. 6. With regard to the wording of subclaims 5 and 8, which are only asserted in the context of "in particular, if" applications, and all other subclaims, reference is made to the contested patent specification. 7. Figures 2, 5, 6A and 6B, shown below in reduced size, illustrate a preferred embodiment of the invention. Figure 2 shows a perspective view of an egg packaging according to the invention:2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 7 8. Figure 5 shows the egg packaging in an open state from the side: 9. Finally, Figures 6A and 6B illustrate the closing mechanism of an egg packaging according to the invention: 10. The contested embodiments are the "ComPac" egg packaging offered and distributed by the defendants and additionally manufactured by the second defendant, which is currently available in various sizes (for 6, 10 or 12 eggs). The defendants have launched various models of the packaging on the market, which differ in particular in the slightly different design of the closing device (pointed nose – angular nose). 11. The illustrations shown below show the first version of the egg packaging at issue (hereinafter: contested embodiment I):2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 82025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 9 12. The second version of the egg packaging at issue (hereinafter: contested embodiment II) has the following design: APPLICATIONS OF THE PARTIES: Action: 13. The claimant requests, after withdrawing the additional application for recall2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 10 with the defendant's consent, I. that the defendants be ordered 1. to refrain from transparent display and delivery packaging (2) for eggs, whereby the packaging is made of a fibre material, in the Federal Republic of Germany, the French Republic and the Netherlands , to offer, to market, to use or to import or possess for the aforementioned purposes; wherein the packaging (2) comprises: - a base portion (4) comprising a plurality of egg-receiving compartments (8) having non-planar side surfaces to at least partially correspond to the outer contours of an egg, the plurality of compartments (8) being arranged in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a rear surface (14) and two substantially planar end surfaces (18), - wherein the cover part (6) is permanently connected to the base part (4) by a hinge (16) between the rear surface (14) of the cover part (6) and the base part (4) to allow the cover part to move between an open position and a closed position, - wherein the cover part (6) comprises partially egg-shaped sections (20) extending outwardly from the two substantially planar end surfaces (18), each of the two substantially planar end surfaces (18) completely spans the entire end surfaces of the cover part (6) apart from the egg-shaped sections (20), - wherein the base part (4) comprises a rear side (22), a front side (24), two end sides and at least one upwardly extending retaining projection (26) extending from the front side (24) of the base part (4), - wherein the cover part (6) is provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), characterised in that the upwardly extending retaining projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with one or more cooperating openings (30) in the front surface (12) of the cover part (6), - wherein the nose (28) does not extend beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position;2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 11 - Claim 1 of EP 2 755 901 B1 - and to refrain from a method for manufacturing an egg packaging (2) by suction moulding a fibre material in the Federal Republic of Germany, the French Republic and the Netherlands, wherein the packaging (2) comprises: - a base part (4) comprising a plurality of egg-receiving compartments (8) having non- planar side surfaces to at least partially correspond to the outer contours of an egg, the plurality of compartments (8) being arranged in at least two parallel rows, - a cover part (6) comprising a ceiling surface (10), a front surface (12), a rear surface (14) and two essentially planar end surfaces (18), - wherein the cover part (6) is permanently connected to the base part (4) by a hinge (16) between the rear surface (14) of the cover part (6) and the base part (4) to allow the cover part (6) to move between an open position and a closed position, - wherein the base part (4) comprises a rear side (22), a front side (24), two end sides and an upwardly extending retaining projection (26) extending from the front side (24) of the base part (4), wherein the cover part (6) is provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), the method being characterised by the following features of the packaging: - the upwardly extending retaining projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with a cooperating opening (30) in the front surface (12) of the cover member (6), - wherein the nose (28) does not extend beyond the front surface (12) of the cover part (6) when the cover part is in its closed position, and the method is further characterised by the following method steps: - positioning the retaining projection (26) and the cooperating opening (39) relative to each other during the moulding of the egg packaging (2) in a mould in such a way that deformations in the cover part (6) are compensated for during manufacture, - removing the egg packaging (2) from the mould, and - drying the egg packaging (2) in an oven; - Claim 6 of EP 2 755 901 B1 -2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 12 and to refrain from manufacturing, offering, marketing, using or importing or possessing for the aforementioned purposes any egg packaging in the Federal Republic of Germany, the French Republic and the Netherlands if the method for manufacturing the egg packaging comprises the following steps: - suction moulding a fibrous material wherein the packaging (2) comprises: - a base part (4) comprising a plurality of egg-receiving compartments (8) having non-planar side surfaces to at least partially correspond to the outer contours of an egg, wherein the plurality of compartments (8) ordered in at least two parallel rows, - a cover part (6) comprising a ceiling surface (10), a front surface (12), a rear surface (14) and two essentially planar end surfaces (18), - wherein the cover part (6) is permanently connected to the base part (4) by a hinge (16) between the rear surface (14) of the cover part (6) and the base part (4) to allow the cover part (6) to move between an open position and a closed position, - wherein the base part (4) comprises a rear side (22), a front side (24), two end sides and an upwardly extending retaining projection (26) extending from the front side (24) of the base part (4), wherein the cover part (6) is provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), the method being characterised by the following features of the packaging: - the upwardly extending retaining projection (26) has a downwardly and outwardly extending tab (28) for locking engagement with a cooperating opening (30) in the front surface (12) of the cover part (6), - wherein the nose (28) does not extend beyond the front surface (12) of the cover part (6) when the cover part is in its closed position, and the method is further characterised by the following method steps: - Positioning the retaining projection (26) and the cooperating opening (39) relative to each other during the moulding of the egg packaging (2) in a casting mould in such a way that deformations in the cover part (6) are compensated for during manufacture, - removing the egg packaging (2) from the mould, and2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 13 - drying the egg packaging (2) in an oven; - Product from claim 6 - 2. to provide the claimant with information on the extent to which they have committed the acts referred to in section I. 1. since 21 March 2018, specifying a) the origin and distribution channels of the infringing products and processes, b) the quantities produced, manufactured, delivered, received or ordered and the prices paid for the infringing products, and c) the identity of all third parties involved in the manufacture or distribution of infringing products or in the application of the infringing process, whereby copies of the relevant purchase documents (namely invoices or, alternatively, delivery notes) shall be submitted as evidence of the information provided, whereby details requiring confidentiality may be redacted from the data subject to the obligation to provide information; II. order the defendants 1. to destroy the products referred to in I. 1. in their direct or indirect possession or ownership; 2. to destroy the materials and equipment used primarily for the manufacture of the products referred to in I.1.; III. to declare that the defendants are jointly and severally liable to compensate the claimant for all damages incurred and to be incurred as a result of the acts referred to in I. 1. above, committed since 21 March 2018; IV. order the defendants to pay the claimant the sum of EUR 11,000 as provisional damages; V. In the event of any violation of the order under Section I. 1., the defendants shall pay a penalty of up to EUR 250,000 to the court. VI. to declare the provisional enforceability of the judgment. 14. If the court deems it necessary, in accordance with R. 352 RoP, to make provisional enforceability dependent on the payment of security, the claimant proposes that partial security be set for each claim awarded and the decision on costs, with the following individual amounts being proposed: • Claim I. 1. Injunction: EUR 250,000 • Claim I. 2. Disclosure EUR 50,000 • Claim II. 1 and 2. Destruction: EUR 50,0002025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 14 • Claim II. 3. Recall: EUR 50,000 • Claim III./IV. Claim for damages: EUR 100,000 14. With regard to the wording of the 'in particular, if' applications, reference is made to the statement of claim. 15. The defendants request that I. dismiss the action; II. order the claimant to pay the costs of the proceedings; III. in the alternative, if unsuccessful: 1. declare confidential the information requested under I.2 of the action, which the defendants would provide to the claimant in the event of enforcement of a judgment; 2. order that the information under point III.1 may only be disclosed to the following persons on the plaintiff's side: - the authorised representatives, their assistants (including the experts and their team members) and - a maximum of three persons from the claimant's company, to be named by the claimant; 3. order that, after the final conclusion of the proceedings, the persons named by the claimant under point III.2 must surrender or destroy the confidential information referred to in point III.1; 4. to instruct the parties and the persons designated by the Claimant to treat the confidential information referred to in point III.1 as confidential beyond the proceedings and to use the confidential information exclusively for the purposes of these and any subsequent proceedings for damages (R. 125 et seq. UPC Agreement RoP); 5. to impose a proportionate penalty payment for each case of infringement of the orders. Counterclaim: 16. The defendants request that 1. that European patent 2 755 901 be declared invalid in its entirety; 2. order the counterclaim defendant and Claimant to pay the costs of the proceedings. 17. The claimant requests that 1. that the counterclaim for annulment brought by the counterclaimants for annulment be dismissed in its entirety; 2. order the applicants for revocation to pay the costs of the proceedings.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 15 Applications for amendment of the patent: 18. In the event that the Board considers the counterclaim for revocation to be well-founded, the Claimant requests, in the form of auxiliary requests, that the maintained patent at issue be maintained within the scope of the sets of claims formulated as auxiliary requests 1 to 4 in the corresponding order. 19. Auxiliary request 1 is formulated as follows, whereby the reproduction of subclaims 2 to 5 and 7 and 8, which remain unchanged from the registered version, is omitted: 1. A display and distribution package (2) for eggs, said package being formed of a fibrous material, the package (2) comprising: - a bottom part (4) comprising a plurality of egg-receiving compartments (8) having non- planar side surfaces so as to match at least partially the outer contours of an egg, the plurality of compartments (8) being arranged in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a back surface (14), and two substantially planar end surfaces (18), - the cover part (6) being permanently connected to the bottom part (4) by a hinge (16) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position, - said cover part (6) comprising partial ovoid portions (20) extending outwardly from the two substantially planar end surfaces (18), wherein each of the two substantially planar end surfaces (18) apart from the ovoid portions (20) completely spans the entire end surfaces of the cover part (6), - the bottom part (4) comprising a back side (22), a front side (24), two end sides, and at least one upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4), - the cover part (6) being provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6) characterised in that the upwardly extending retention projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with one or more cooperating apertures (30) in the front surface (12) of the cover part (6), said label (42) covering said nose (28) and said apertures (30), - the nose (28) not extending beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position. […] 6. A method of manufacturing an egg package (2) by suction moulding of a fibrous material, the package (2) comprising: - a bottom part (4) comprising a plurality of egg receiving compartments (8) having non-planar side surfaces so as to match at least partially the outer contours of an egg, the plurality of compartments (8) being formed in at2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 16 least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a back surface (14), and two end surfaces (18), - the cover part (6) being permanently connected to the bottom part (4) by a hinge (16) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position, - the bottom part (4) comprising a back side (22), a front side (24), two end sides, and an upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4), the cover part (6) being provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), the method being characterised by the following features of the package: - the upwardly extending retention projection (26) having a downwardly and outwardly extending nose (28) for locking engagement with a cooperating aperture (30) in the front surface (12) of the cover part (6), - said label (42) covering said nose (28) and said apertures (30), - the nose (28) not extending beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position, and the method being further characterised by the method steps of: - placing said retention projection (26) and cooperating aperture (30) relative to each other during moulding of the egg package (2) in a moulding form, such that deformations in the cover part (6) during manufacture are compensated for, - removing the egg package (2) from the mould, and - drying said egg package (2) in an oven. 20. In addition, auxiliary request 2 reads as follows, whereby here too the claims 2 to 5 and 7 and 8, which remain unchanged from the registered version, are omitted: 1. A display and distribution package (2) for eggs, said package being formed of a fibrous material, the package (2) comprising: - a bottom part (4) comprising a plurality of egg-receiving compartments (8) having non- planar side surfaces so as to match at least partially the outer contours of an egg, the plurality of compartments (8) being arranged in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a back surface (14), and two substantially planar end surfaces (18),2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 17 - the cover part (6) being permanently connected to the bottom part (4) by a hinge (16) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position, - said cover part (6) comprising partial ovoid portions (20) extending outwardly from the two substantially planar end surfaces (18), wherein each of the two substantially planar end surfaces (18) apart from the ovoid portions (20) completely spans the entire end surfaces of the cover part (6), - the bottom part (4) comprising a back side (22), a front side (24), two end sides, and at least one upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4), - the cover part (6) being provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), characterised in that the upwardly extending retention projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with one or more cooperating apertures (30) in the front surface (12) of the cover part (6), said label (42) covering said nose (28) and said apertures (30), said nose (28) working as a hook that hooks onto a lower edge of the said aperture (30), - the nose (28) not extending beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position. […] 6. A method of manufacturing an egg package (2) by suction moulding of a fibrous material, the package (2) comprising: - a bottom part (4) comprising a plurality of egg receiving compartments (8) having non- planar side surfaces so as to match at least partially the outer contours of an egg, the plurality of compartments (8) being formed in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a back surface (14), and two end surfaces (18), - the cover part (6) being permanently connected to the bottom part (4) by a hinge (16) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position, - the bottom part (4) comprising a back side (22), a front side (24), two end sides, and an upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4), the cover part (6) being provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), the method being characterised by the following features of the package: - the upwardly extending retention projection (26) having a downwardly and outwardly extending nose (28) for locking engagement with a cooperating aperture (30) in the front surface (12) of the cover part (6),2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 18 - said label (42) covering said nose (28) and said apertures (30), said nose (28) working as a hook that hooks onto a lower edge of said aperture (30), - the nose (28) not extending beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position, and the method being further characterised by the method steps of: - placing said retention projection (26) and cooperating aperture (30) relative to each other during moulding of the egg package (2) in a moulding form, such that deformations in the cover part (6) during manufacture are compensated for, - removing the egg package (2) from the form, and - drying said egg package (2) in an oven. 21. The changes made to the registered version are highlighted in colour and underlined. 22. With regard to the wording of the further auxiliary requests, reference is made to the application for amendment of the patent dated 5 September 2024. 23. The defendant opposed the auxiliary requests. FACTUAL AND LEGAL ISSUES IN DISPUTE: Infringement action: 24. In the claimant's opinion, the contested embodiments make literal use of the technical teaching of the patent at issue. 25. As can be seen from the illustrations shown below, taken from page 48 of the statement of claim, the contested embodiments in particular have a retaining projection with a nose within the meaning of the patent at issue:2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 19 26. The illustrations below, taken from page 47 of the patent specification, show that the nose of the contested embodiments (in the closed position) does not extend beyond the front surface of the cover part: 27. Furthermore, the cover part of the contested embodiments has egg-shaped sections that extend outwards from the two essentially planar end surfaces (see figure in the statement of claim, p. 47): 28. In its rejoinder to the reply to the counterclaim for annulment, the claimant additionally invoked an equivalent patent infringement with regard to the question of the existence of a retaining projection within the meaning of the patent at issue. For details of this submission2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 20 , reference is made to the relevant document of 5 December 2024, pp. 12–16. 29. The applications subsequently filed by both parties for the admission of further documents in the infringement proceedings (App 1153/2025 and App 66627/2024) were rejected by the reporting judge in an order dated 4 March 2025. 30. The defendants deny infringement of the patent at issue. 31. They are of the opinion that the contested embodiments do not have an upwardly extending retaining projection. In contrast to the teaching of the patent at issue, the contested embodiments have a closure tab which, compared to the retaining projections, is flexible and thus contributes to the closure mechanism. The patent at issue specifically seeks to avoid such a tab. 32. Furthermore, the nose of the contested embodiments does not extend downwards, but is rather aligned horizontally. As a result, the contested embodiments have a different closure mechanism than the patent at issue. 33. In addition, the nose extends beyond the front surface of the cover part and thus does not fulfil feature 4 of claim 1 of the feature breakdown included in the grounds, according to which the nose should not extend beyond the front surface of the cover part when the cover part is in its closed position. Since the claimant assumes that the egg cartons are filled, there is at most an indirect infringement, but the claimant has not substantiated the conditions for this. 34. Furthermore, the sections of the cover part of the contested embodiments lacked the ovoid sections required by the patent at issue (feature 3.3. of the feature structure found in the grounds). The feature requires the fulfilment of specific characteristics, such as, in particular, the longitudinal curvature and the slightly pointed surface of the section. According to the invention, the ovoid sections in question should, taken on their own, already convey a clear association with the shape of an egg to an observer, even if it is not a precise egg shape but, for example, an ellipsoidal shape. The contested embodiments did not have such a three-dimensional shape. 35. Finally, in the defendant's opinion, the contested embodiments do not infringe the manufacturing method protected by patent claim 6, as they do not have the retaining projections specified in the patent, but rather a closure tab (feature 1.2 of patent claim 6). Therefore, there is no need to compensate for any deformations that may occur through the manufacturing process according to the invention (feature 3). 36. Irrespective of the (lack of) implementation of the technical teaching of the patent at issue by the contested embodiments, the actions of the defendants were also not attributable to each other. In the defendants' view, they are not liable either as co-perpetrators or as joint and several debtors. Furthermore, the respective conduct of the defendants is also not attributable under the principles of corporate liability. 37. The claimant has contested this argument.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 21 Counterclaim for nullity: 38. In the defendant's opinion, the patent at issue should be declared invalid in its entirety. 39. In the defendant's view, only claims 1 and 5 can be granted the priority date of application EP 11 181 004.0 of 13 September 2011 (hereinafter: Prio1), while claims 6 to 8 could at most enjoy the priority of PCT/IB 2012/054229 of 21 August 2012 (hereinafter: Prio2). If, in the course of interpreting claims 1 to 5, reference is made to a disclosure in the patent at issue that is not directly and unambiguously reflected in document Prio1, it must be carefully examined, in view of the priority situation, whether the subject matter claimed in the corresponding interpretation can still be regarded as clearly and directly disclosed in the prior application Prio1. The same applies to document Prio2. If this is not the case for one or more claims, priority can no longer be claimed as valid. As a result, the priority date of the claim concerned – in the case of claims 1 to 5 – would revert to the filing date of document Prio2 or the filing date of the patent at issue, as applicable. The same applies if the term "nose" used in the patent at issue in connection with claims 1 and 5 is interpreted in a way that does not correspond to the understanding of the term "retainment flap" used for the same element in document Prio1. 41. The defendants' arguments were based primarily on the assumption that claims 6 to 8 have the priority date of application PCT/IB 2012/054229 of 21 August 2012 (Prio2). In contrast, the defendants take a more differentiated view of claims 1 to 5 of the patent at issue: If the claims were interpreted in a manner that is clear and directly apparent from document Prio1, these claims would benefit from the priority of document Prio1. If, on the other hand, the claims were interpreted in accordance with the opinion expressed by the Claimant in the infringement proceedings, claims 1 to 5 would also be able to enjoy the priority of document Prio2 at most. 42. On this basis, the egg carton described and shown in EP 1 389 590 A1 (Annex GDM 1) exhibits all the features of claim 1 of the patent at issue. It therefore lacks novelty in relation to document GDM1, and in any case lacks inventive step. If patent claim 1 of the patent at issue is interpreted in such a way that the embodiment according to Figures 8 to 16 is also considered to be covered by it, claim 1 merely has the priority date of document Prio2 (21 August 2012). This means that WO 2013/164664 (Exhibit GDM 6) is a subsequently published prior art document which, however, anticipates the claim and thus destroys its novelty. 43. Based on EP 1 373 100 A1 (Annex GDM 2), there is at least a lack of inventive step. All features of claim 1 are directly known from this document or are at least obvious to a person skilled in the art based on their technical knowledge or the further state of the art. The same applies to a combination of EP 1 923 332 A1 (Annex GDM 3) with EP 0 380 321 A1 (Annex GDM 4) or with WO 2011/116427 A1 (Annex GDM 5). 44. Patent claim 6 is disclosed in the documents submitted as Annexes GDM 1, GDM 2 and GDM 6 in a manner that is detrimental to novelty. Furthermore, based on a combination of document GDM 3 with document GDM 4 or document GDM 5, this patent claim lacks inventive step.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 22 45. Claims 2 to 4 could also not contribute to the patentability of the egg packaging according to claim 1 in view of documents GDM 1 and GDM 4. The same applies to claims 5 and 8, taking into account documents GDM 1, GDM 5 and GDM 6 as well as ES 249 778 U (document GDM 7). The post- pressing claimed in patent claim 7 is an optional process known from general technical knowledge in the manufacture of fibre moulded parts, such as egg packaging. 46. The claimant defends the patent at issue in the granted version. In the alternative, it asserts a total of four auxiliary requests, the wording of which is referred to in the reply of 5 December 2014. Legal consequences: 47. In the defendant's opinion, the conditions for the award of provisional damages are not met. 48. The optional nature of Rule 119 of the RoP means that the Court can only award provisional damages if there is a risk that the claimant will otherwise be unable to finance the further proceedings and the assertion of justified claims for damages depends on the provisional damages in order to carry out the further proceedings. The claimant has not provided any evidence to support this. 49. In any case, the claimant had not substantiated why the amount it was claiming was appropriate as provisional damages. Since only reasonable and proportionate costs could be reimbursed, there was no scope for a general estimate of the costs incurred. 50. The claimant objected to this. LEGAL ASSESSMENT: A. Jurisdiction of the Düsseldorf local division I. Infringement action 51. The Düsseldorf local division has international jurisdiction pursuant to Article 31 of the UPC Agreement in conjunction with Article 71b(2) and Article 7(2) of Regulation (EU) No 1215/2012 (Brussels I Regulation). Pursuant to Article 32(1) of the UPC Agreement, the Unified Patent Court also has exclusive jurisdiction over actions for actual or threatened infringement of European patents, unless an opt-out has been declared (Article 83(3) of the UPC Agreement). Since the defendants did not file a preliminary objection within the one-month period provided for in Rule 19(1) of the RoP, both the jurisdiction of the Unified Patent Court and the jurisdiction of the local division in Düsseldorf are deemed to have been accepted (Rule 19(7) of the RoP). II. Counterclaim for revocation 52. The Unified Patent Court (UPC) also has international jurisdiction over counterclaims for revocation. Pursuant to Art. 32(1)(e) of the UPC Agreement, the UPC has exclusive jurisdiction over counterclaims for the nullity of (European) patents. Since there is currently no opt-out (Art. 83(3) of the UPC Agreement) from the exclusive jurisdiction of the court with regard to the patent at issue,2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 23 the UPC – as the common court of the Member States of the UPC Agreement – has international jurisdiction over the present counterclaim pursuant to Articles 24(4), 71a(2)(a) and 71b(1) of Regulation (EU) No 1215/2012. B. Relevant expert 53. The relevant expert is a graduate engineer or master's degree holder in packaging technology from a university of applied sciences or university of applied sciences with several years of professional experience in the development and design of packaging technology, with special knowledge in the field of pulp-based fibre moulded packaging. C. Scope of protection of the patent at issue 54. The patent at issue relates to display and delivery packaging for eggs. 55. According to the introductory remarks in the description of the patent at issue, packaging for packing and transporting eggs in a variety of shapes is known. Such packaging usually consists of a lower part provided with appropriately shaped compartments for holding the eggs and an upper part which forms a cover over the lower part to hold the upper parts of the eggs housed in the packaging and to close the packaging. The upper part is often connected to the lower part by a suitable hinge, although packaging with separate lower and upper parts is also used. In packaging with a connected base and cover part, the vertical front of the base part is often provided with a flexible flap, which has a series of projections for engaging in correspondingly arranged and shaped holes in the cover part, thereby locking the base and cover parts together when the packaging is closed. Since, when closed, the lower part of the packaging is typically shaped to accommodate and support the items contained therein, only the upper part can be given a flat shape that allows the application of text and images describing the contents of the packaging and visible to the customer on the sales shelf (para. [0002]). 56. EP 1 373 100 B1 (GDM 2) discloses an exhibition and distribution packaging unit for fragile items, in particular eggs. This has a base part that at least partially corresponds to the outer contours of the eggs held in the unit. Furthermore, the packaging has a cover part with flat top and side surfaces for providing graphic information about the contents of the packaging, whereby parts of the end surfaces of the cover part are shaped so that they reflect the shape of the eggs held in the packaging (para. [0003]). 57. EP 1 923 332 A1 (GDM 3) discloses a similar egg packaging, but with two locking mechanisms (para. [0004]).2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 24 Figure 1 of EP 1 373 100 B1 (GDM2) Figure 6 of EP 1 923 332 A1 (GDM3) 58. According to the description of the contested patent, the solutions known from the prior art have the disadvantage that the closure and locking mechanism is provided by a protrusion ("traditional locking flap") which extends through an opening in the front of the cover part, thereby reducing the space available for a label. This meant that, in previous egg packaging, it was only possible to attach a label to the top of the cover part. When the egg packaging is stacked on a shop shelf, these labels are often not visible. There is therefore always a conflict between a large area for affixing a label and, at the same time, a reliable closure and locking mechanism, i.e. a large area for a label without compromising the reliability of the locking mechanism. In addition, the costs of manufacturing and transporting the closure tabs for egg cartons known from EP 1 373 100 B1 are increased (para. [0005]). 59. Based on this, according to the description of the contested patent, the invention is based on the task (the technical problem) of providing a packaging unit for eggs • which, due to its shape, provides clear, visible information about the contents of the unit and at the same time offers good opportunities for providing graphic and/or pictorial information on large areas of the unit (para. [0006]), • which can be sealed reliably and essentially error-free by a machine [para. [0007]), • which can be manufactured as an integrated unit, for example by suction moulding (para. [0008]), and • which can be reliably closed and locked without the provision of a conventional closure tab (para. [0009]). 60. To solve this problem, claim 1 of the patent at issue protects a display and distribution package (2) for eggs, which is characterised in the relevant English claim wording by a combination of the following features:2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 25 0. A display and distribution package (2) for eggs. 1. The package is formed of a fibrous material. 2. The package comprises a bottom part (4). 2.1. The bottom part (4) comprises a plurality of egg-receiving compartments (8). 2.1.1. The egg-receiving compartments (8) have non-planar side surfaces so as to match at least partially the outer contours of an egg. 2.1.2. The plurality of compartments (8) are arranged in at least two parallel rows. 2.2 The bottom part (4) comprises a back side (22), a front side (24), two end sides, and at least one upwardly extending retention projection (26) extending from the front side (24) to the bottom part. 2.2.1. The upwardly extending retention projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with one or more cooperating apertures (30) in the front surface (12) of the cover part (6). 3. The package comprises a cover part (6). 3.1. The cover part comprises a top surface (10), a front surface (12), a back surface (14), and two substantially planar end surfaces (18). 3.2. The cover part (6) is permanently connected to the bottom part (4) by a hinge (16) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position. 3.3. The cover part (6) comprises partial ovoid portions (20) extending outwardly from the two substantially planar end surfaces (18), 3.3.1. wherein each of the two substantially planar end surfaces (18) apart from the ovoid portions (20) completely spans the entire end surfaces of the cover part (6). 4. The nose (28) does not extend beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position. 5. The cover part (6) is provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6). 61. And in English translation: 0. Display and delivery packaging for eggs. 1. The packaging is made of a fibrous material.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 26 2. The packaging comprises a base part (4). 2.1. The base section (4) comprises a plurality of egg-receiving compartments (8). 2.1.1. The egg-receiving compartments (8) have non-planar side surfaces in order to at least partially correspond to the outer contours of the egg. 2.1.2. The plurality of compartments (8) are arranged in at least two parallel rows. 2.2 The base portion (4) comprises a rear side (22), a front side (24), two end sides and at least one upwardly extending retaining projection (26) extending from the front side (24) of the base portion (4). 2.2.1. The upwardly extending retaining projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with one or more cooperating openings (30) in the front surface (12) of the cover part (6). 3. The packaging comprises a cover part (6). 3.1. The cover part (6) comprises a top surface (10), a front surface (12), a back surface (14) and two substantially planar end surfaces (18). 3.2. The cover part (6) is permanently connected to the cover part (6) and the base part (4) by a hinge (16) between the rear surface (14) of the cover part (6) and the base part (4) to allow the cover part (6) to move between an open position and a closed position. 3.3. The cover part (6) comprises partially egg-shaped sections (20) that extend outwards from the two essentially planar end surfaces (18), 3.3.1. each of the two substantially planar end surfaces (18) completely spanning the entire surface of the cover part (6) apart from the egg- shaped sections (20). 4. The nose (28) does not extend beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position. 5. The cover part (6) is provided with a label (42) which covers the top surface (10) and a substantial part of the front surface (12) of the cover part (6). 62. The subordinate patent claim 6 can be structured as follows: 0. A method of manufacturing an egg package (2) by suction moulding of a fibrous material. 1. The package (2) comprises a bottom part (4).2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 27 1.1. The bottom part (4) comprises a plurality of egg receiving compartments (8). 1.1.1. The egg receiving compartments (8) have non-planar side surfaces so as to match at least partially the outer contours of an egg. 1.1.2. The plurality of compartments (8) is formed in at least two parallel rows. 1.2. The bottom part (4) comprises a back side (22), a front side (24), two end sides, and an upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4). 1.2.1 The upwardly extending retention projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with a cooperating aperture (30) in the front surface (12) of the cover part (6). 1.2.2 The nose (28) does not extend beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position. 2. The package (2) comprises a cover part (6). 2.1 The cover part (6) comprises a top surface (10), a front surface (12), a back surface (14), and two end surfaces (18). 2.2. The cover part (6) is permanently connected to the bottom part (4) by a hinge (6) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position. 2.3. The cover part (6) is provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6). 3. Placing said retention projection (26) and cooperating aperture (30) relative to each other during moulding of the egg package (2) in a moulding form, such that deformations in the cover part (6) during manufacture are compensated for. 4. Removing the egg package (2) from the mould. 5. Drying said egg package (2) in an oven. 63. And in English translation: 0. Method for producing an egg package (2) by suction moulding the Fa-ser material. 1. The package comprises a base part (4). 1.1. The base part (4) comprises a plurality of egg-receiving compartments (8).2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 28 1.1.1. The egg-receiving compartments (8) have non-planar side surfaces in order to at least partially correspond to the outer contours of the egg. 1.1.2. The plurality of compartments (8) is arranged in at least two parallel rows. 1.2 The base part (4) comprises a rear side (22), a front side (24), two end sides and at least one upwardly extending retaining projection (26) extending from the front side of the base part. 1.2.1. The upwardly extending retaining projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with one or more cooperating openings (30) in the front surface (12) of the cover part. 1.2.2. The nose (28) does not extend beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position. 2. The packaging comprises a cover part (6). 2.1. The cover part (6) comprises a ceiling surface (10), a front surface (12), a rear surface (14) and two essentially planar end surfaces (18). 2.2. The cover part (6) is permanently connected to the base part (4) by a hinge (16) between the rear surface (14) of the cover part (6) and the base part (4) to allow the cover part (6) to move between an open position and a closed position. 2.3. The cover part (6) is provided with a label (42) which covers the ceiling surface (10) and a substantial portion of the front surface (12) of the cover part (6). 3. Placing the retaining projection (26) and the cooperating opening (30) relative to each other during the moulding of the egg packaging (2) in a mould in such a way that deformations in the cover part (6) are compensated for during manufacture. 4. Removing the egg packaging (2) from the mould. 5. Dry the egg packaging (2) in an oven. 64. Some features require explanation: 65. According to Art. 69 EPC in conjunction with the Protocol on its interpretation, the patent claim is not only the starting point but also the decisive basis for determining the scope of protection of a European patent. The interpretation of a patent claim depends on2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 29 not solely on its exact wording in the linguistic sense. Rather, the description and drawings must always be consulted as explanatory aids for interpreting the patent claim and not only used to resolve any ambiguities in the patent claim. However, this does not mean that the patent claim serves merely as a guideline and that its subject matter also extends to what, after examination of the description and drawings, represents the patent proprietor's protection claim. When applying these principles, adequate protection for the patent proprietor should be combined with sufficient legal certainty for third parties. The patent claim must be interpreted from the perspective of a person skilled in the art. These principles for interpreting a patent claim apply equally to the assessment of the infringement and validity of a European patent (UPC CoA 335/2023, order of 26 February 2024, headnote 2 and p. 26 f. – 10x Genomics v. Nanostring; UPC CoA 1/2024, order of 13 May 2024, para. 26 – VusionGroup v. Hanshow; UPC CoA 182/2024, order of 25 September 2024, para. 82 – Mammut v. Ortovox). 66. That said, the following applies with regard to patent claim 1: 67. According to features 0, 1, 2 and 3, the protected display and delivery packaging for eggs comprises a base part and a cover part, whereby the packaging is made of a fibrous material. Preferably, this may be pulp (paras. [0010], [0044], [0063], [0085]). The term "fibrous material" is generally understood by those skilled in the art to mean cellulose or wood fibres. Based on their expertise, those skilled in the art know without dispute that the fibres used for egg packaging are usually obtained from certain types of waste paper and cardboard (see Annex FW 3, Section 14.3). 68. Feature group 2 describes the design of the base part. 69. According to features 2, 2.1 and 2.1.1, the bottom part (4) has a plurality of egg-receiving compartments (8) with non-planar side surfaces in order to at least partially correspond to the outer contours of an egg. Due to the thin-walled design customary in the art, this feature is fulfilled regardless of whether the outer or inner shape of the compartments is considered. Feature 2.1.2 specifies that the plurality of compartments is ordered in at least two parallel rows. 70. Feature group 3 describes the design of the cover part (6), which, according to feature 3.1, comprises a top surface (10), a front surface (12), a back surface (14) and two substantially planar end surfaces (18). The wording of the claim ("substantially planar end surfaces", underlining added) already indicates that the end surfaces may also comprise non-planar areas. 71. However, with regard to the end surfaces, patent claim 1 does not stop at requiring them to be substantially planar. Rather, feature 3.3 additionally requires that the cover part comprises partial ovoid portions (20) that extend outwardly from the two substantially planar end surfaces. 72. As the expert can see from section [0012] of the contested patent specification, such "partially egg-shaped sections" are sections that have a shape which allows the observer to clearly associate them with the shape of an egg, without the shape necessarily corresponding exactly to the shape of an egg. The background to the requirement for a partially egg-shaped design of the end surfaces is explained in paragraph [0016] of the contested patent specification: Among other things, by providing the end surfaces of the lid with2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 30 (partially) egg-shaped sections, an egg packaging is provided that is very appealing to the consumer and is also more easily recognisable to the consumer (see also paragraphs [0011] and [0039]). 73. On this basis, feature 3.3. is already considered to be fulfilled if the egg-shaped areas have a shape that clearly conveys an association with an egg shape to the observer, without having to correspond exactly to the shape of an egg. As long as the surfaces or partial surfaces of a series of different rotational bodies, for example an ellipsoid, convey such a clear association with an egg shape, they can also be regarded as "partially egg-shaped sections" within the meaning of the patent at issue. Even polygonal or angular bodies of revolution are not fundamentally excluded, provided that they still convey the idea of an egg shape sufficiently clearly to the observer. 74. Feature 3.3.1 deals with the further design of the essentially planar end surfaces and requires that each of the two essentially planar end surfaces, apart from the egg-shaped end sections, completely spans the entire surface of the cover part. As a result, the end sides of the cover part thus have two areas, namely the partially egg-shaped sections and the essentially planar end surfaces, which completely span the entire surface of the cover part outside the partially egg- shaped sections. 75. Neither patent claim 1 nor the description of the contested patent refer to the size of the planar end surfaces. Nor does patent claim 1 exclude a structuring of the planar end surfaces. 76. Figures 2 and 14 of the patent at issue, together with the associated description, which are shown below in a coloured version, illustrate how the planar end surfaces can be designed: Figure 2 Figure 14 77. The partially egg-shaped sections (20 "ovoid portions") are coloured blue. It can be clearly seen from Figure 2 that the green-coloured, essentially planar end surface outside the egg-shaped sections completely spans the entire surface of the cover part. In Figure 14, on the other hand, a concave central section (32, red) can also be seen between the essentially egg-shaped sections, the surface structure of which differs from the other surfaces of the packaging. The essentially planar sections (18) are highlighted in orange in Figure 14.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 31 78. If, as in this case, several embodiments are presented in the description as being in accordance with the invention, the terms used in the claims are to be understood, in case of doubt, as meaning that all embodiments fall within the scope of protection of the patent at issue (UPC CoA 405/2024, order of 20 December 2024 – Alexion v. Amgen; UPC CFI 390/2024 (LD München, Panel 1), decision of 13 September 2024, headnote 2 – Philipps v. Belkin; UPC CFI 140/2024, order of 16 June 2025, para. 86 – 10x Genomics v. Curio) If the expert also takes into account, in accordance with the functional interpretation that is always required, that the division between the essentially flat and the partially egg-shaped sections serves to provide an attractive egg packaging that evokes the association with one or more eggs in the consumer (see para. [0012], [0016]), it can be concluded that feature group 3.3. is to be interpreted broadly: since feature 3.3.1. only requires "substantially planar end surfaces", the end surfaces do not have to be completely flat. Rather, it is clear to the skilled person with regard to Figure 14 that part of the end surfaces may also be convex. Such convex sections do not conflict with the desired division between the egg-shaped sections and the substantially planar end surfaces, even from a functional point of view, because they do not necessarily impair the desired perceptibility and emphasis of the egg-shaped sections, but on the contrary can even improve them. 79. According to feature 3.2, the cover part (6) is permanently connected to the base part (4) by a hinge (16, "hinge") between the rear surface of the cover part and the base part. This permanent connection allows the cover part to be moved between an open and a closed position. 80. Features 2.2. and 2.2.1. deal with the closure of the egg packaging. 81. As the specialist can see from feature 2.2, the base part has a back side (22), a front side (24) and two end sides. In addition, the base part should comprise at least one upwardly extending retainment projection (26) extending from the front side of the base part. 82. Patent claim 1 does not expressly state whether this retaining projection is flexible or rigid. Rather, the technical design of the retaining projection is described in feature 2.2.1. only in that it (1) is part of the base part, (2) extends upwards and (3) has a nose extending downwards and outwards which is suitable for enabling a locking engagement with one or more cooperating openings in the front surface of the cover part. Further requirements for the design of the nose and thus also of the retaining projection as a whole may arise from feature 4, according to which the nose must not extend beyond the front surface (12) of the cover part (6) when the cover part is in its closed position. In other words, the nose, in particular with regard to its outward extension, may only be dimensioned so that it does not protrude beyond the front surface of the cover part when the packaging is closed. 83. However, the skilled person does not stop at such a consideration based solely on the wording of the patent claim. According to Art. 69(1) sentence 2 EPC, the description and drawings must be taken into account when interpreting the patent claim (cf. the applicable principles: UPC CoA 335/2023, order of 26 February 2024, paras. 73-79 – 10x Genomics v. Nanostring; UPC CFI 213/2025 (LD Düsseldorf), order of 10 July 2025, paras.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 32 54 – Aesculap v. Shanghai International). 84. When the skilled person then considers the description of the contested patent, they will notice that the solutions discussed in the description of the prior art all feature a closure mechanism in which the vertical front side of the base part is equipped with a flexible flap with one or more protrusions that engage with correspondingly arranged and shaped holes in the cover part (see paragraphs [0002] – [0004]). 85. The patent in dispute initially considers the solutions known from EP 1 373 100 and EP 1 923 322 to be disadvantageous because the closing and locking mechanism is implemented by a conventional locking flap with a protrusion ("the closing and locking mechanism is provided by a traditional locking flap having a protrusion"), which extends through an opening in the front of the cover part, thereby reducing the space available for a label (paras. [0003] and [0004]). The criticism is not directed at the implementation of the closing and locking mechanism via a closing flap per se, but rather at the protrusions passing through the closing flap, at least according to the solutions disclosed in the aforementioned publications. 86. However, the patent specification also mentions as a further disadvantage of the closure flap known from EP 1 373 100 the associated increase in the manufacturing and transport costs of the egg packaging. Insofar as the claimant, at the request of the court during the oral proceedings, attempted to explain the claimed savings in material and transport costs compared to the aforementioned specification by dispensing with the large button disclosed therein and the (supposed) space savings associated with stacking the egg packaging on top of each other in a lorry, there is no indication of this in the contestedNeither does the description of the patent at issue address the size of this button ("protrusion"), nor does the patent at issue deal with its effects on the stackability of the egg packaging. Rather, the description of the contested patent considers the button to be disadvantageous because it protrudes through the opening in the cover, thereby reducing the space available for attaching the label. On this basis, the skilled person has no reason to refer the savings in material and transport costs mentioned in paragraph [0005] not (only) to the closure flap, contrary to the wording of the description, but solely to the button located on it. 87. This raises the question of whether the patent at issue seeks to distinguish itself from the combination of a closure flap and a projection known from the prior art by requiring an upwardly extending retaining projection, with the consequence that the latter does not fall within the scope of protection of the patent at issue. 88. If the skilled person turns to the further patent description to answer this question, their attention is drawn to paragraph [0009], which mentions the provision of an egg packaging without a conventional closure flap as one of the objectives of the invention. However, it remains unclear at this point whether the patent at issue seeks to exclude a closure flap per se or only one in which the projection on this closure flap extends through the front of the cover part. 89. Insofar as the defendants continue to refer to the increased stability and rigidity of the retaining projections mentioned in the description of the preferred embodiments2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 33 (see paragraphs [0052] et seq. and [0075] - [0077]), these statements refer to the cushion posts provided for in the preferred embodiment but not required by claim 1. No general conclusions can be drawn from this regarding a specific design of the retaining projections. 90. However, the skilled person must also take into account that the contested patent makes an allocation of certain advantages in connection with the closing of the packaging to a packaging according to the invention in paragraph [0013] of the description: Moreover, a reliable and stable locking function that may be facilitated by simple mechanical closing means is achieved, for example provided by packing machinery without the risk of damaging the fragile eggs that are placed in the package. This is due to the fact that the egg package according to the above embodiment may be closed and locked in one operation by pivoting the cover part in relation to the hinge. This pivoting of the cover part may thus be facilitated by only one mechanical operation by the packing machinery. Typically, packaging machinery is adapted for handling a tremendous number of packages over a short time span. It is therefore an important advantage of the present embodiment that the package can be closed and locked in an error-free and reliable manner by the packaging machinery. Since the nose(s) project downwardly and outwardly, the cooperating aperture(s) on the cover part can slide over the nose(s) during closing of the egg package and engage it in a locking manner, because the nose(s) will simply work as a hook that hooks onto a lower edge of the aperture. This way, a simple yet effective means of providing reliable locking on the cover part is achieved, which is also easy to manufacture. Preferably, there are a number of such apertures corresponding to the number of noses. (Emphasis added) 91. The expert concludes from this that the egg packaging according to the invention is intended to enable the cover part to be closed and locked in a single operation. Since the retaining projection has a nose extending downwards and outwards, the opening on the cover part can slide over the nose when the egg packaging is closed and then lock the packaging, as the nose acts as a hook that hooks onto a lower edge of the opening (see also para. [0022], [0035]). 92. If this advantage of the invention cannot be achieved with flexible closure flaps provided with a projection, this suggests that the patent at issue understands something different by a understands a "retaining projection" to mean something other than the flexible closure tabs with a projection known from the prior art, namely a design that has such dimensional stability and rigidity that it enables the lid to be closed in a single step as described above. 93. The defendant already argued in their statement of defence that designs with a flexible closure flap cannot be closed in a single step (see statement of defence, para. 103). The defendant elaborated on their argument in this regard in their reply to the infringement action (para. 19 et seq.) and argued that a flexible closure tab requires that the closure tab be pressed upwards first when closing the cartons before the lid can slide over the nose. In addition, based on the defendants' submission, the use of a closure flap significantly increases production costs (para. 39 et seq.), which corresponds to the findings in para. [0005]2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 34 a.E. of the description of the contested patent. Both points remained undisputed in the oral proceedings. 94. On this basis, the expert concludes that the patent at issue understands the term "retaining projection" as defined in the patent claim to be distinct from the flexible closure tabs known in the prior art: it is a component that reduces material costs in order to lower production costs by saving on the base area of the closure tabs. As a result, the retaining projection is located directly on the front of the base part and has sufficient rigidity to allow the cover part to slide over the nose extending outwards and downwards on the retaining projection when closing, thus enabling the locking engagement required in feature 2.2.1. when closed. This allows the egg packaging to be closed correctly and reliably by the packaging machine in a single operation by pivoting the cover part (see paragraphs [0013], [0023]). 95. The fact that this must be the case and that the patent at issue seeks to distinguish itself from the prior art by requiring a retaining projection on flexible closure tabs is confirmed to the skilled person by the overall structure of patent claim 1. According to the invention, the retaining projection extends upwards from the front of the base part and has a nose extending downwards and outwards. If the retaining projection is a flexible closure tab, the reference point for the alignment of the nose changes depending on the position of the tab. 96. Insofar as feature 2.2.1. further requires that the upwardly extending retaining projection has a downwardly and outwardly extending nose, the skilled person will notice, with regard to the wording of the patent claim, that it refers unspecifically to a "nose" without specifying particular areas of the nose that are to extend outwardly and downwardly. In order to understand the meaning of this feature, the skilled person will turn to the function of the downwardly and outwardly extending nose and attempt to understand it in light of the description of the contested patent. They will find what they are looking for in paragraph [0013], which states: "... Since the nose(s) are projecting downwardly and outwardly, the cooperating aperture(s) on the cover part can slide over the nose(s) during closing of the egg package and engage it in a locking manner, because the nose(s) will simply work as a hook that hooks onto a lower edge of the aperture. This way, a simple yet effective means of providing reliable locking on the cover part is achieved, which is also easy to manufacture." 97. A similar description can be found in paragraph [0023]. 98. Because the nose protrudes downwards and outwards, the openings in the cover part can slide over the nose when the packaging is closed and then hook onto the lower edge of the opening in the cover part. The nose thus functions as a sliding surface and as a hook that hooks onto the lower edge of the opening in the cover part. This ensures that the egg packaging can be closed correctly and reliably in a packaging machine with a single movement, namely by pivoting the cover part relative to the base part. This does not necessarily require the lower edge of the nose to be directed downwards. As long as the nose can fulfil its intended functions – sliding surface for the openings of the cover part and enabling it to hook onto the lower edge of the opening of the cover part –2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 35 it meets the requirements set out in feature 2.3.1. 99. Features 4 and 5 describe the design of the cover part with a label. 100. Feature 4 specifies that the nose must not extend beyond the front surface of the cover when the cover is in its closed position. The nose must therefore be designed in the packaging unit in such a way that it does not protrude beyond the front surface, but still ensures a reliable closure together with the opening. The patent at issue leaves open in claim 1 the technical means by which this effect is achieved. 101. If the skilled person considers feature 5, the cover part should be provided with a label which covers the top surface and a substantial part of the front surface of the cover part. 102. Patent claim 1 does not contain any further specifications as to how large the essential part of the front surface should be, nor does it contain any further specifications as to how far the label should extend over the front surface of the cover part. Insofar as paragraph [0014] et seq. mentions a design in which the cover part is provided with a label covering the top surface and the entire front surface of the cover part, the wording already makes it clear that this is merely a design option and not a mandatory requirement for the design of the label ("... it is possible to equip the cover part with a label covering the top surface and the entire front surface of the cover part."). A design in which the entire top surface and only part of the front surface of the cover part is covered with a label may therefore also fall within the scope of protection of patent claim 1. 103. The features of the method claimed in claim 6 correspond in many respects to those of claim 1. The device features 1, 1.1, 1.1.1, 1.1.2, 2, 2.1, 2.2, 1.2, 2.3, 1.2.1 and 1.2.2 included in the process claim are therefore subject to the same assessment as those of patent claim 1, whereby device features 3.3 and 3.3.1 have not been included in the process claim. Accordingly, the claimed method can also be used to produce egg packaging with any end surfaces without these having to have a particular shape. 104. Feature 0 requires that the egg packaging be produced by suction moulding a fibrous material. 105. According to feature 3, the retaining projection and the cooperating opening are to be positioned relative to each other during the moulding of the egg packaging in a casting mould, so that the deformations in the cover part are compensated for during manufacture. 106. Patent claim 6 leaves open the technical means by which mutual positioning is to be achieved. The description does not elaborate on this either. It does describe that the cover and base parts may be more susceptible to deformation during the manufacturing process, i.e. after they are removed from the mould and dried in the oven, due to their different degrees of rigidity. In order to compensate for even minor deformations of the cover part during moulding, the retaining projection and the cooperating opening are arranged relative to each other during the moulding of the egg packaging2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 36 a mould. This ensures that the egg packaging can be locked and sealed essentially without error by the existing packaging machines used in the handling of packaging according to the state of the art, despite the nose not protruding beyond the front side of the cover part (cf. para. [0022]). However, the patent specification is silent on the actual requirements for the positioning of the retaining projection and the openings. 107. Feature 3 is therefore relatively broad. Nevertheless, it should be borne in mind that it does not only require the production of the egg packaging in a mould. Rather, it requires • the retaining projection and the cooperating opening must be positioned during moulding • in such a way that the deformations in the cover part are compensated for during manufacture. 108. According to feature 4, the egg packaging is removed from the mould and, according to feature 5, dried in an oven. D. Counterclaim for annulment 109. The counterclaim for annulment is partially successful. I. Priority 1. Examination standard 110. Pursuant to Article 87 EPC, any person who has duly filed an application for a patent, a utility model or a utility model certificate, or their successor in title, shall enjoy a right of priority for the application of the same invention for a European patent during a period of twelve months from the filing date of the first application. This right may be claimed pursuant to Article 88 EPC. The effect of the right of priority is that the priority date is deemed to be the filing date of the European patent application for the purposes of determining the state of the art (Article 89 in conjunction with Article 54(2) and (3) EPC). The term "the same invention" in Article 87 EPC is to be interpreted as meaning that a claimed invention is to be regarded as the same invention as the invention in an earlier application if the skilled person can derive the subject-matter of the claim directly and unambiguously from the earlier application as a whole using general technical knowledge (see Central Chamber Munich (UPC CFI 1/2023 (CD Munich), decision of 16 July 2024 – Sanofi v. Amgen). This standard corresponds to the disclosure standard for inadmissible extension as formulated by the Court of Appeal in its order of 14 February 2025 (UPC CoA 382/2024, Abbott/Sibio). The decisive factor is what a person skilled in the art, using their general knowledge and objectively, would immediately and unambiguously derive from the entire application filed at the time of filing, whereby an implicitly disclosed subject matter, i.e. a subject matter that is clearly and unambiguously derived from what is expressly stated, is also to be considered part of the content. 2. Examination in individual cases 111. Based on these principles, the patent at issue successfully claims the priority of EP 111810042025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 37 (hereinafter: Prio1 document) of 13 September 2011 for the subject matter of patent claim 1, but not for patent claim 6. The invention claimed in patent claim 1 is already disclosed directly and unambiguously in the entirety of the Prio1 application documents, in particular patent claim 1 of the Prio1 document and its p. 8, lines 15, 16. This applies in particular to feature 1 and feature groups 2 and 3. Even though Figures 8 to 16 of the patent at issue are not found in the Prio1 document, this document also refers to essentially planar end surfaces ("two substantially planar end surfaces", cf. patent claim 1 and abstract, p. 18, line 15). Even without the other figures of the patent at issue, feature group 3 is therefore already sufficiently disclosed in the Prio1 document. 112. With regard to patent claim 6, the Prio1 document does not disclose the same invention. Features 3, 4 and 5 are not disclosed in the Prio1 document and therefore do not relate to the same invention. 113. In contrast, PCT/IB2012/054229 (hereinafter: Prio2 document) discloses all the features of patent claim 6, which is why the subordinate patent claim 6 can successfully claim the priority of this document dated 21 August 2012. II. Novelty 114. The prior art cited by the defendant does not anticipate the technical teaching of the patent at issue in a manner that would destroy its novelty. 1. Standard of novelty examination 115. An invention is considered new if it differs from the prior art in at least one of its known features. Only that which is immediately apparent to a person skilled in the relevant technical field from the publication or prior use is considered to be anticipated by the prior art (see UPC CoA 382/2024, order of 14 February 2025, APL 39664/2024 – Abbott v. Sibio). Findings that an expert only gains on the basis of further considerations or the use of additional literature or uses are not prior art (see UPC CFI 11/2024 (LD Düsseldorf), decision of 8 May 2025, para. 89 – Grundfos v. Hefei; UPC CFI 50/2024 (LD Düsseldorf), decision of 10 April 2025, para. 136 – Yellow Sphere v. Knaus Tabbert; UPC CFI 7/2024 (LD Düsseldorf), decision of 3 July 2024 – Kaldewei v. Bette; UPC CFI 239/2024 (LD Den Haag), decision of 22 November 2024 – Plant-e v. Arkyne (Bioo)). 2. Novelty examination in individual cases – Patent claim 1 116. On this basis, the technical teaching protected by patent claim 1 proves to be new in relation to the prior art cited by the defendant. a) EP 1 389 590 A1 (Annex GDM 1, hereinafter: EP '590) 117. The subject matter of patent claim 1 is new compared to EP '590. In any case, there is no disclosure of feature 1, according to which the packaging is made of fibrous material. 118. EP '590 relates to food packaging, in particular an egg carton, with a lower part that has at least one row of moulded recesses for holding individual food items, in particular eggs, and a cover part that is hinged to the2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 38 Lower part in order, the lower part and the cover part being provided with complementary clamping projections and clamping openings (para. [0001]). 119. In known packaging, the only functionality for securely stacking egg cartons is that the clamping projections and clamping openings are arranged in such an order that the clamping projections of one egg carton engage in the clamping openings of the egg carton above or below it. However, this is disadvantageous during sale when the egg cartons are to be removed individually from the stack (para. [0002]). 120. Based on this, EP `590 sets itself the task of improving the functionality of the clamping elements (para. [0003]). 121. To solve this problem, EP `590 proposes arranging the clamping openings on one of the two parts, the cover part or the base part, with the clamping openings offset laterally in relation to the clamping projections. This not only results in better stackability, but also allows the empty food packaging to be used as clamping blocks, e.g. for building play castles for children (paras. [0007], [0032]). 122. Figures 1 and 2 below show an embodiment of the food packaging disclosed in EP `590 in an open and closed state. 123. The egg carton (1) comprises a base (2) and a cover (3) which is hinged to the base (2) by means of a flexible hinge (25). In addition, a sticker (7) is affixed to the cover part (3), covering the top surface and part of the front surface (dashed line). The base part (2) has two parallel rows with a plurality of moulded recesses (21) for holding eggs. The moulded recesses (21) are formed by the corresponding design of the wall of the base part (2) and by two supports (23) arranged in the middle, so that eggs placed in them do not touch each other. To fix the cover part (3) in the closed position, two retaining lugs (24) are arranged on one front side of the base part. The cover part is of a trough-shaped design, with two openings (34) arranged on the front part, which are intended to interact with the lugs (24) of the base part in order to lock the cover part in the closed position with the base part. Figure 2 in particular shows that the lugs (24) do not extend beyond the front surface of the cover part when closed. On the upper side of the cover part, a recess (4, 38) is ordered parallel to the axis of the bending hinge (25), which is suitable for receiving elongated objects (paras. [0024] to [0027], [0034]). 124. The EP '590 thus describes a display and delivery container for eggs with the following features2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 39 0, 2, 2.1, 2.1.1, 2.1.2, 3, 3.1, 3.2, 3.3, 3.3.1 and 5. 125. Below is a colour-coded excerpt from Figure 1 showing a retaining projection: 126. As the figure illustrates, the retaining projection (green) has a nose extending downwards and outwards. 127. This means that features 2.2.1., 2.2. and 4. from EP `590 are also known. 128. Feature 1 is not disclosed; there is no disclosure of the material of the food packaging. 129. This is not changed by the fact that document FR 2 441 549 A (hereinafter: EP `549) is mentioned (cf. para. [0002]), which discloses an egg packaging made of moulded fibre. Contrary to the defendant's view, this does not directly and unambiguously disclose that the food packaging claimed in EP '590 is also necessarily made of fibre material. Firstly, the material used in EP '549 is not mentioned in EP '590. Rather, EP '590 deals with this document only with regard to the combination of complementary clamping openings and clamping levers on the lower and upper parts already shown there. On the other hand, it should also be known to the skilled person that such packaging can be made not only of moulded fibre but also of plastic. b) EP 1 373 100 B1 (Annex GDM 2, hereinafter: EP '100) 130. The subject matter of patent claim 1 is also novel in relation to EP '100. 131. EP '100 relates to a display and shipping packaging unit for eggs or similar fragile items. 132. As the expert can see from the citation, egg packaging for packing and transporting eggs was known in a variety of forms. Such packaging usually comprises a lower part with suitably shaped compartments for holding the fragile items and an upper part which forms a cover for the lower part. Suitable closure areas are formed by tabs in the lower part and correspondingly arranged holes in the cover part. However, as EP `100 further explains, such packaging has the disadvantage that only the upper part can be given a flat shape to allow text and images to be applied over the packaging contents. When such packaging is stacked on the sales shelf, only the vertical front is visible to the customer. The presence of holes in the cover part also reduces the possibility of using this area for written and pictorial information. Furthermore, opening the packaging is laborious.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 40 since the user must press the retaining projections into the holes in order to disengage the retaining projections and holes (paras. [0001], [0002]). 133. Based on the known display and shipping packaging units for eggs, EP '100 states that the objective of the invention is to provide a display and shipping packaging unit for eggs that • is manufactured as a coherent unit from opaque pulp material by means of suction moulding, • is suitable, due to its shape, for conveying clear, visible information about the contents, • at the same time offers the possibility of applying graphic and/or pictorial information to large surfaces of the unit, • is easy to open and close, and • consists of a mechanically strong shell structure ([0006] to [0009]). 134. To solve this problem, EP `100 proposes that the areas in the cover part be located on essentially flat end surfaces of the cover part at either one or both longitudinal ends of the cover part. 135. Figures 1 and 2 of the citation, which are shown below in reduced size and with colour highlights added by the Senate, show the display and delivery packaging of one design in the open and closed states, with Figure 2 showing the packaging in plan view (left) and from below. 136. The display and shipping packaging unit is made of moulded pulp and has a base section (2) with a plurality of compartments arranged in two parallel rows. The bottom part has non-flat side walls that reflect the shape of the eggs contained in the unit. The cover part comprises a top surface (10) and essentially flat front and rear walls (14, 15). It is permanently connected to the bottom part by a hinge, which allows the cover part to move between an open and a closed position.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 41 12, hereinafter generally referred to as a hinge", para. [0028], lines 44 to 47). The areas in the cover part that are partially egg-shaped and extend outwards from the essentially planar end surfaces (marked in purple) are marked in yellow. It is also clearly recognisable that each of the two essentially planar end surfaces (purple), apart from the egg-shaped parts (yellow), completely spans the entire end surface of the cover part (paras. [0027] to [0036]). 137. EP `100 thus discloses features 0, 1, 2, 2.1, 2.1.1, 2.1.2, 3, 3.1, 3.2, 3.3 and 3.3.1. Feature 4 is also disclosed. According to para. [0022] of the citation, the one or more projections have a cross-section in a plane parallel to the front side of the unit. 138. Features 2.2, 2.2.1 and 5 are not disclosed. 139. Based on the above detailed understanding of the term "holding projection", there is no disclosure of feature 2.2. As the above illustrations show, the disclosed design has a flexible closure flap ("flap" 6, see also paragraph [0021] of the citation). The patent at issue distinguishes itself from such designs precisely by requiring a retaining projection. 140. Contrary to the defendant's opinion, EP '100 still lacks a direct and unambiguous disclosure of a nose that extends downwards and outwards for locking engagement with the corresponding opening of the cover part according to feature 2.2.1. Rather, according to the embodiment shown in the figures and the accompanying description (see para. [0033]), the noses have an egg shape. Even if these may be provided with text, images or embossing, the skilled person does not find any indication in the citation that the nose is designed to point outwards and downwards. 141. It is not apparent that the skilled person, as claimed by the defendant, would refer to EP '332 (Annex GDM 3) for the question of the shape of the nose without falling into an inadmissible retrospective analysis. Apart from the fact that there is no room for such considerations in the context of the novelty examination anyway, EP '100 shows the skilled person the possibility of an egg-shaped design for the protrusion. Against this background, the skilled person has no reason to refer to EP '332 with regard to the design of the nose. 142. Ultimately, this is irrelevant, at least in the novelty examination. In any case, there is no direct and clear disclosure as to which areas of the cover part are intended for a label and whether the label is also located on a substantial part of the front surface (missing feature 5). This is not changed by the fact that paragraph [0024] discloses that large parts of the essentially flat surfaces of the cover part of the packaging unit according to the invention can be provided with graphic and/or pictorial information in the form of a label. c) WO 2013/164664 (Annex GDM 6, hereinafter: WO '664) 143. WO '664 was filed on 3 May 2012, i.e. after the priority date of Prio1. It cannot therefore prejudice the novelty of the subject matter of patent claim 1.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 42 3. Novelty examination in individual cases – Patent Claim 6 144. Patent claim 6 also proves to be novel in relation to the prior art cited by the defendant. a) WO 2013/164664 (Annex GDM 6, hereinafter: WO '664) 145. WO '664 does not anticipate the subject matter of patent claim 6 in a manner that would destroy novelty. 146. This was filed on 3 May 2012 and published on 7 November 2013. Since, as explained, patent claim 6 merely successfully claims the priority of the Prio2 document of 21 August 2012, it constitutes prior art published after the filing date of patent claim 6 and must be taken into account in the novelty examination. 147. The citation relates to packaging for eggs. 148. The packaging is manufactured as a single integrated part by vacuum forming a fibre material in accordance with feature 0. (WO `664, p. 7, lines 26 to 31, p. 8, lines 21 to 31). Since Figures 1 to 7 of the citation correspond to those of the patent at issue, all device features of feature groups 1 and 2 are also known from WO `664. 149. WO `664 is silent on the manufacturing process, except for the reference on p. 8, lines 21–31 to the manufacture of the egg packaging by suction moulding and from pulp, so that in any case there is no direct and clear disclosure of features 3 to 5. Nor can it be established that the skilled person would supplement the missing features, as claimed by the defendant, by drawing on their general technical knowledge, including Annexes FW 2 and FW 2a, in such a way that WO `664 could be considered to be prejudicial to novelty despite the undisclosed features. III. Inventive step 150. Patent claim 1 lacks inventive step based on the prior art cited by the defendant. In contrast, patent claim 6 proves to be legally valid also from the point of view of inventive step. 1. Standard 151. According to Art. 56 EPC, an invention is considered to involve an inventive step if it is not obvious to a person skilled in the art from the prior art. 152. In the opinion of the Central Chamber in Munich (UPC CFI 1/2023 (CD Munich), decision of 16 July 2024 – Sanofi v. Amgen), the Düsseldorf local division has repeatedly concurred in the past (UPC CFI 363/2023, decision of 10 October 2024, – Seoul Viosys v. expert; UPC CFI 16/2024, decision of 14 January 2025 – Orthovox v. Mammut; UPC CFI 50/2024 (LD Düsseldorf), decision of 8 March 2025, para. 166 - 173 – Yellow Sphere v. KnausTabbert; UPC CFI 11/2024 (LD Düsseldorf), decision of 8 May 2025, para. 108 - 115), an assessment must always be made on a case-by-case basis, taking into account all relevant facts and circumstances, when examining inventive step. An objective approach must be taken. The subjective ideas of the applicant or inventor are irrelevant. The only relevant factor is what the claimed invention actually contributes to the state of the art.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 43 153. Inventive step must be assessed from the perspective of a person skilled in the art on the basis of the entire state of the art, including general technical knowledge. It must be assumed that the person skilled in the art had access to the entire generally accessible state of the art at the relevant time. The decisive factor is whether the claimed subject matter is such that the person skilled in the art would have found it on the basis of their knowledge and skills, e.g. through obvious modifications of what is already known. 154. In order to assess whether a claimed invention was obvious to a person skilled in the art, it is first necessary to determine a starting point in the prior art. It must be justified why the person skilled in the art would consider a particular part of the prior art to be a realistic starting point. A starting point is realistic if its teaching would have been of interest to a person skilled in the art who, at the priority date of the patent at issue, was seeking to develop a product or process similar to that disclosed in the prior art, i.e. one that has a similar basic problem to the claimed invention (see UPC CoA 335/2024, Order of 26 February 2024, p. 34 – Nanostring v. 10x Genomics, under "cc" in the original German version, "For a person skilled in the art who was faced with the task at the priority date of the patent in suit, [...] D 6 was of interest"). There may be several realistic starting points, whereby it is not necessary to determine the "most promising" starting point. 155. When comparing the claimed subject matter as interpreted with the prior art, the question arises as to whether it would have been obvious to a person skilled in the art to arrive at the claimed solution based on a realistic disclosure of the prior art in view of the underlying problem. If it was not obvious to arrive at this solution, the claimed subject-matter meets the requirements of Article 56 EPC. 156. In general, a claimed solution is obvious if the skilled person, based on the prior art, would be motivated (i.e. would have an incentive, see the CoA in NanoString v. 10x Genomics, p. 34), to consider the claimed solution and implement it as the next step ("next step", cf. UPC CoA 335/2024, order of 26 February 2024, p. 35, second paragraph – Nanostring v. 10x Genomics) in the development of the prior art. On the other hand, it may be relevant whether the skilled person would have expected particular difficulties in carrying out the next step or steps. Depending on the facts and circumstances of the case, it may be permissible to combine disclosures from the prior art. 157. A technical effect or advantage achieved by the claimed subject matter in comparison with the prior art may be an indication of inventive step. A feature that has been arbitrarily selected from several possibilities cannot, in general, contribute to inventive step. 158. A retrospective approach must be avoided. The question of inventive step should not be answered by searching, with hindsight and knowledge of the patented subject-matter or solution, for (combined) disclosures in the prior art from which this solution could be derived.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 44 2. Patent claim 1 159. On this basis, patent claim 1 does not prove to be legally valid from the point of view of inventive step. 160. As explained, EP 1 389 590 A1 (Annex GDM 1) lacks only the disclosure of the packaging material. All other features, on the other hand, are disclosed. It remained undisputed in the oral proceedings that only three different materials are known for egg cartons, namely pulp (and thus fibre material), plastic and (solid) cardboard. Pulp dominates the market in some countries, including Germany, while plastic egg packaging dominates in other countries. 161. The expert was therefore familiar with all materials suitable for egg packaging, although only a very limited selection of materials was available to the expert. It is undisputed that, due to the shape shown in EP '590, production from solid cardboard is ruled out for the design shown there, so that the skilled person could only consider production from fibre material and thus pulp or plastic. 162. In principle, the skilled person is accustomed to selecting a suitable material from those materials that are generally known to be suitable for a particular purpose. The selection of a material from a narrowly limited number of possible materials available to the skilled person does not require any special skills and therefore does not constitute an inventive step (cf. Haedicke/Timmann, Handbook of Patent Law, 2nd edition, § 5 marginal number 352; Benkard/Söldenwagner, European Patent Convention, Art. 56 EPC, marginal number 161). 163. Since pulp is one of the leading materials for egg packaging, it would have been obvious for the skilled person to use this material for the design disclosed in EP '590, at least if this design did not require the use of a specific material and the skilled person would not have been deterred from using pulp. 164. However, this is not the case. 165. Insofar as the claimant pointed out in the oral hearing that the intended clamping connection (EP `590, col. 2, line 4) and the stable structures envisaged (EP `590, col. 2, line 21) required a high degree of precision that could not be achieved with a fibrous material such as pulp, the Board cannot agree. Even if, as can be assumed in favour of the claimant, plastic packaging allows for greater precision than pulp packaging, it is not apparent that pulp packaging does not allow for at least sufficient precision to achieve the clamping connection of food packaging sought in EP `590. In addition, it may be that plastic egg packaging is more stable and durable and is therefore better suited as a toy for a longer period of time. However, this is not relevant to the citation. The plaintiff does not dispute that pulp-based egg packaging can also be used as a toy for at least a limited period of time after it has fulfilled its packaging function (EP `590, col. 2, lines 18–21) is not disputed by the Claimant. EP `590 does not require anything more. The fact that packaging made of pulp cannot be used to produce comparatively large structures, such as play castles for children (EP `590, col. 21–28), has neither been sufficiently argued nor is it apparent.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 45 166. The fact that pulp-based egg packaging, as argued by the claimant, may not be reused for hygienic reasons (see defence to the action for annulment, p. 57), does not justify a different assessment, because the decision of the Administrative Court of Regensburg (Exhibit Heuking 20) submitted by the Claimant in this context, as well as the article by Ökotest (cf. Heuking 19), deal with the reuse of such packaging in the commercial sector. In contrast, EP '590 only provides for the continued use of egg packaging in the private sphere as a toy and thus for direct reuse or upcycling by end consumers. EP '590 makes no mention of the fact that egg packaging must be designed in such a way that it can be disinfected and cleaned before reuse in the private sphere. Nor is this to be expected on a regular basis in the private sphere. 3. Patent claim 6 167. The defendant's submission is not sufficient to significantly call into question the inventive step in relation to patent claim 6. 168. As already explained with regard to patent claim 1, neither EP Neither GDM 3 nor EP 321 has a label that covers the entire ceiling surface. Therefore, a combination of these printed materials does not lead to the subject matter of patent claim 6. 169. Since the patent at issue only claims priority for priority document Prio2 of 21 August 2012, WO `427 (GDM 5) must be taken into account as prior art in assessing the inventive step with regard to patent claim 6. 170. WO `427 provides for at least one recess on a ceiling surface of the packaging and a projection on the bottom surface of the bottom part to improve the stackability of several egg packaging units on a stack, whereby the projection is dimensioned so that it fits firmly into the recess, so that when the projection of one packaging unit is inserted into the recess of another packaging unit, the projection is held detachably in the recess (WO 427, p. 1, lines 26 to 33). WO `427 is silent on the material used to manufacture the egg packaging, as well as on the manufacturing process used. In addition, the label in WO `427 is only applied to the front of the packaging. The top surface is unsuitable for the application of labels (WO `427, p. 2, lines 29 to p. 3, line 3). 171. WO `427 therefore lacks at least a disclosure of features 0, 2.3, 3, 4 and 5. 172. Since the provision of a label covering the entire ceiling surface is not disclosed in EP '321 either, even when combining W '427 with EP '321, it is not obvious to a person skilled in the art to arrive at the solution claimed in patent claim 6. IV. Subordinate requests 173. Patent claim 1 is not legally valid in the version of auxiliary request 1, but is legally valid in the version according to auxiliary request 2. 1. Auxiliary request 1 174. According to auxiliary request 1, the wording of the granted patent claim 1 or patent claim 62025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 46 be supplemented as follows: "said label (42) covering said nose (28) and said apertures (30)" ("wherein the label (42) covers the nose (28) and the apertures (30)"). a) Admissibility of the auxiliary request 175. Auxiliary request 1 is admissible. The newly added feature is disclosed both in the disclosure document and in the patent at issue. 176. The disclosure passages cited by the claimant describe that "all technical locking features" or even the "entire locking mechanism" are to be concealed beneath the label: "by which all technical locking features are hidden beneath the label," (patent at issue, para. [0015], OS/Heuking 26 page 25, lines 14-16 in conjunction with lines 4-12; page 25 lines 20-24 and page 30, lines 28-30 and lines 33-36) "The close-up in Fig. 6B shows a cover part 6 [...] The illustrated part of the front surface 12 of the cover part 6 is equipped with a label 42 covering the entire locking mechanism of the egg package 2." (Patent at issue, para. [0035]) "In the close-up Fig. 13B, a cover part 6 is illustrated [...] The illustrated part of the front surface 12 of the cover part 6 is equipped with a label 42 covering all the locking mechanism of the egg package 2." (Patent at issue, para. [0055]) 177. While it was originally disclosed that the label covers the locking mechanism (i.e. all parts of the locking mechanism), it is now claimed that the label covers the nose and the openings. According to the disclosure in the patent at issue, all parts of the closure mechanism consist of the opening and the nose. Only preferably, according to patent claim 5, can the tongue also form part of the closure mechanism. This amendment is within the scope of the original disclosure; therefore, there is no inadmissible extension here. b) No inventive step Patent claim 1 178. Auxiliary request 1 is not suitable for establishing inventive step in relation to EP '590. 179. As Figure 3 of the citation, shown below, illustrates, the label does not cover either the nose or the openings:2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 47 180. However, the following additional note can be found in column 10, lines 6–12: "The size of the sticker shown in Fig. 3 is arbitrary as long as it sufficiently covers the trough 4 and the retaining connection 36. The sticker can also be made considerably larger, so that its front side can be pulled down to the lower edge of the front part 33 of the cover part 3." (Underlining added) 181. If the sticker extends to the underside of the front part of the cover part, it consequently covers the nose and the openings. The feature added by auxiliary request 1 is therefore also disclosed in citation GDM 1. 2. Auxiliary request 2 182. Unlike auxiliary request 1, auxiliary request 2 is suitable for helping patent claim 1 to achieve legal validity. 183. This auxiliary request seeks to supplement the wording of patent claims 1 and 6 in accordance with auxiliary request 1 with the following additional feature: "said nose (28) working as a hook that hooks onto a lower edge of the said aperture (30)" "wherein the nose (28) acts as a hook that hooks onto a lower edge of the said aperture (30) (30)" a) Admissibility of the auxiliary request 184. Auxiliary request 2 is admissible. The added feature is disclosed in paragraphs [0013] and [0023] of the contested patent specification and in the disclosure document (Annex Heuking 25) on pages 9, lines 21 to 25, and 13, lines 30 to 34. b) Inventive step Patent claim 1 185. Below is another illustration of the nose marked in colour, as disclosed in EP '590:2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 48 186. There is no indication in EP `590 that this nose acts like a hook that engages with the lower edge of the opening. Nor is this obvious without resorting to a retrospective view, which is always inadmissible. 187. On this basis, EP `590 is not suitable for significantly calling into question the inventive step of patent claim 1 in the version according to auxiliary request 2. 188. Patent claim 1 also proves to be legally valid in terms of inventive step in relation to the further prior art cited by the defendant. aa) Combination of EP 1 923 332 A1 (GDM 3, hereinafter: EP '332) in conjunction with EP 0 380 321 A1 (GDM 4, hereinafter: EP '321) 189. The subject matter of patent claim 1 is not suggested by a combination of EP '332 with EP '321. 190. EP '332 relates to packaging for eggs manufactured from pulp using a suction moulding process. Figure 1 of this citation is shown below for illustrative purposes: 191. As can be seen from the figures shown above, the egg packaging has openings on the top of the cover part (5) for better visual inspection, whereby labels can be affixed in the central area (7) where labels can be affixed that can extend between the front and back (5, 6) of the packaging without affecting the window areas at the edges of the cover surfaces (see para. [0017]). Since the cover surface of the cover part also has numerous openings, it can only be partially labelled, but not completely as required by feature 5. 192. As can be seen from Figure 1 above, the base part also has projections (12) which, when the packaging is closed, extend through the2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 49 The projections (12) extend beyond the front surface of the cover part, which is why feature 4 is also not disclosed. 193. The missing features are also not fully disclosed in EP `321. 194. This relates to an egg packaging consisting of a pulp base part and a plastic cover part, as can be seen from Figures 1 and 2 of the citation shown below: 195. Both parts are connected to each other by a hinge (EP `321, col. 2, lines 15 to 17). The bottom part of the egg packaging has a retaining flap ("flap (16)") which comprises an outwardly extending latching projection ("latching projection (16A)"), while the cover part has a rectangular opening (32) in a slightly recessed area (30) on its front side (EP `321, col. 2, lines 36 to 55). To prevent the packaging from being opened during storage or before sale, a label is affixed to the top surface and front surface of the top part. The self-adhesive surface of the label covers the opening of the cover part and the locking projection (16A) of the bottom part. To open the packaging, a tear-off strip must be removed at the perforation so that the retaining projection is exposed. This can then be pressed to open the packaging (EP `321, col. 3, lines 36–52). 196. As shown in Figure 2 of EP `321 above, the nose also extends through the opening in the solution disclosed therein in order to establish adhesive contact between the nose and the label. 197. Furthermore, the skilled person can see from column 3, lines 36 to 52 of EP `321 that the label is applied to the top surface and a substantial part of the front surface (18), covering the opening (32). When the packaging filled with eggs is to be closed, the closure tab (16A) sticks to the self- adhesive surface of the label when it snaps into the opening. At the very least, EP `321 therefore lacks a disclosure that the slightly recessed area on the front of the cover part has a depth such that the nose does not extend beyond the front surface of the cover part when the packaging is closed. 198. Consequently, EP `321 also lacks a disclosure of feature 4. Furthermore, the label shown in Figure 2 of EP `321 also covers only part of the cover surface, so that there is also no disclosure of feature 5. None of the documents therefore discloses features 4 and 5, which is why, even when combined, it would not be obvious for a person skilled in the art to arrive at the technical teaching protected by claim 1 of the patent at issue.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 50 teaching protected by claim 1 of the contested patent. 199. Even if the expert, assuming in favour of the defendant, were to consider, based on EP '332, that the task was to provide as much space as possible in the ceiling surface of the cover part despite the many openings, the defendants have also failed to substantiate what suggestion or reason the skilled person should have had to consider EP `321 on the basis of EP `332. Both publications are intended to solve different tasks. While EP `332 seeks a solution for attaching a label to the ceiling surface of the cover part provided with numerous openings, EP `321 deals with the attachment of a label that covers the closure mechanism of the egg packaging in order to prevent the cover part from being opened before sale. If the skilled person were to transfer the teaching of EP `321 to EP `332, he would design the label to be wide enough to cover the closure mechanism of the packaging. However, this would have the disadvantage of also covering the openings on the top surface of the cover part. In addition, the protruding closure would also make bulges visible on the front surface of the cover part. bb) EP 1 923 332 A1 (GDM 3) in conjunction with WO 2011/1164427 (GDM 5, hereinafter: `427) 200. A combination of EP `332 with WO `427 is not suitable for establishing the lack of inventive step with regard to patent claim 1, because WO `427 was published on 29 September 2011, i.e. after the Prio1 document, whose priority of 13 September 2011 is effectively claimed by the patent at issue. WO `427 is therefore not a suitable document for assessing inventive step in relation to patent claim 1. V. Scope of maintenance 201. While patent claim 6 has thus proven to be legally valid in the registered version, this only applies to patent claim 1 in the version according to auxiliary request 2. Based on the intention expressed by the claimant, there is no reason to regard the claims of the patent at issue in the granted version or auxiliary request 2 as closed sets of claims and, on that basis, to restrict not only patent claim 1 but also patent claim 6. 202. If a patent proprietor defends the patent at issue in the alternative, in the event that the registered version of the patent at issue is invalid, even if only in part, solely in the form of closed sets of claims, it is not necessary to examine whether the subordinate claims of the patent at issue in the registered version are to be declared invalid only in part and, if necessary, to be combined with uncontested claims in accordance with Article 65(3) of the UPC Agreement, given that the court must decide in accordance with the applications of the parties pursuant to Article 76(1) of the UPC Agreement. it is not necessary to examine whether the subordinate claims of the patent at issue in the registered version are to be declared invalid only in part pursuant to Art. 65(3) UPC Agreement and, if necessary, upheld by combination with uncontested (sub)claims. The (alternative) defence of the patent at issue by means of closed sets of claims therefore means that the patent can only be maintained on the basis of such an alternative request, in which each of the subordinate claims of the patent is included in a grantable version (UPC CFI 248/2024 (LD Munich, Panel 2), decision of 22 August 2025, para. 178 et seq. – Brita v. Aquashield Europe). 203. Unlike in the case decided by the Munich local division2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 51 case decided by the Munich Local Chamber, has not expressly clarified whether the claims of the patent at issue in the granted version are to be defended as a closed set or whether the auxiliary amendment requestsare to be understood as a closed set of claims in this form, it must be determined by interpretation whether these applications are based on such an understanding or whether the patent holder wishes to defend the remaining patent applications if the subject matter of only one of the claims proves to be unpatentable, legally invalid or inadmissible for other reasons. 204. Based on these principles, there is no reason to interpret the defence of the patent at issue in the granted version or the amendments proposed by the claimant as meaning that the claimant is defending the patent at issue in the form of closed sets of claims (see also UPC CFI 54/2023 (LD Hamburg), Order of 26 August 2025, headnote 2 and p. 41 – Avago v. Tesla). Patent claims 1 and 6 are subordinate, independent claims that contain materially different solutions and whose legal validity the Claimant has defended separately and independently of each other. The claimant's submission does not indicate, nor can it be otherwise determined, that the claimant was willing to give up more than necessary in the event that one of these subordinate claims proved to be legally invalid and therefore also wanted to see the other subordinate claim, which actually proved to be legally valid, restricted. 205. Against this background, it appears justified in the present case to limit the patent at issue only with regard to patent claim 1, but not with regard to patent claim 6, together with the corresponding subclaims. E. Infringement I. Patent claim 1: 206. Claim 1 does not make use of the technical teaching claimed in claim 1, either literally or by equivalent means. There is no retaining projection and thus no realisation of features 2.2. and 2.2.1. 1. No literal infringement 207. The parties rightly agree that features 0, 1, 2, 2.1, 2.1.1, 3, 3.1, 3.2 and 5 are fulfilled, so that no further explanation is required. a) Feature group 3.3. 208. Based on the above statements on the scope of protection of the patent at issue, the design of the cover part meets the requirements set out in feature group 3.3. 209. As the figures below illustrate, the cover part has essentially planar end surfaces (see the red arrows in the right-hand figure):2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 52 210. Essentially egg-shaped sections extend from these flat end surfaces: 211. Even though the sections marked in the figure shown above do not have the shape of an egg as clearly as shown in some of the figures in the patent at issue (see Figures 2 to 4), they still allow a clear association with the shape of an egg. They therefore meet the requirements set out in feature 3.3. As already explained, a fully rounded egg shape is not required. b) Feature 4. 212. The fact that the nose does not extend beyond the front surface of the cover part, as required by feature 4, can be seen from the illustration below, which shows a flat side view without any protrusions: 213. Feature 4 does not require anything more. In particular, it does not fall outside the scope of protection if, as claimed by the defendant, the nose protrudes minimally into the front surface in the millimetre range. Because, according to the invention, the nose does not protrude beyond the front surface of the cover part when the cover part is in a closed position, the cover part can be provided with a label that covers the top and the entire front surface of the cover part (see para. [0014]). As a result, the consumer is provided with a very attractive egg packaging that conveys an impression of simplicity and "cleanliness".2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 53 simplicity and "cleanliness". As the illustration above shows, these characteristics are not impaired by the fact that the nose may protrude by a few millimetres. c) Features 2.2. and 2.2.1. 214. However, the contested embodiments do not have a retaining projection within the meaning of features 2.2. and 2.2.1. 215. As the figure below, taken from the statement of claim, illustrates, the claimant considers the component extending upwards from the front of the base part to be an upwardly extending retaining projection within the meaning of feature 2.2. 216. However, based on the understanding described in detail above, the component regarded by the claimant as a retaining projection is not a "retaining projection" within the meaning of the patent at issue, but rather a flexible closure flap, as already known in the prior art and from which the patent at issue seeks to distinguish itself with its requirement for a retaining projection. In particular, this component does not have sufficient strength to allow the cover to slide over the nose of the retaining projection when closing the egg packaging and lock the packaging. Feature 2.2 is therefore not fulfilled. 217. Insofar as the claimant appealed for the first time in its rejoinder to the counterclaim for annulment to an equivalent realisation of feature 2.2.1. (actually feature group 2.2. as a whole) in its rejoinder to the counterclaim for annulment, this does not constitute an amendment or extension of the claim, but rather a new argument. Whether such a new argument is admissible depends on the circumstances of the individual case, including the reasons why the plaintiff did not raise the argument at an earlier stage of the proceedings and the procedural possibilities available to the defendant to respond to this new argument. The court has a certain degree of discretion in this assessment, which is why the appeal court can only review the question of admissibility or inadmissibility to a limited extent (UPC CoA 456/2024, APL 44633/2024, order of 21 November 2024, headnote 3 – OrthoApnea). 218. Based on these principles, the claimant's equivalence considerations in the present case are to be disregarded pursuant to Rule 9(2) of the RoP. 219. In their statement of defence, the defendants already disputed the realisation of feature group 2.2. and appealed to the fact that the patent at issue sought to avoid the flexible closure flaps known from the prior art2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 54 . These were to be replaced by the retaining projections. However, since the contested embodiments had a flexible closure flap, the protected technical teaching was not realised (see statement of defence, para. 40 et seq.). 220. Against this background, it is not clear why the equivalence considerations of the claimant are not already found in the reply to the infringement action, but only in the rejoinder to the counterclaim for invalidity. For reasons of equality of arms, the Rules of Procedure provide for two documents for each party in each stage of the proceedings (infringement action, counterclaim for invalidity, requests for amendment). The defendant's rejoinder therefore generally concludes the exchange of documents in the infringement proceedings. Any further exchange of documents requires prior approval by the court in accordance with Rule 36 of the RoP. 221. However, the claimant did not (initially) apply for such leave. Instead, it decided to incorporate its considerations on an equivalent realisation of feature 2.2.1. without prior approval and only two months later to submit an application for approval, which the judge-rapporteur rejected by order of 4 March 2025 (App 1153/2025 and App 66627/2025). If the claimant had already included its considerations in this regard in its reply to the infringement action, the defendant would have been in a position to respond to them in their subsequent rejoinder. This possibility has been denied to them by the course of action chosen by the claimant. If the plaintiff's application for the admission of a further document had been successful, the defendant would have been dependent on the court's admission of a further document. 222. On this basis, the approach chosen by the claimant not only contradicts point 7 of the preamble to the Rules of Procedure, according to which the parties are required to cooperate with the Court and to present their arguments in full as early as possible in the proceedings. It also significantly disadvantages the defendants in the exercise of their rights. The claimant's submission on equivalence must therefore be disregarded pursuant to Rule 9(2) of the RoP. 223. Apart from that, the Claimant's submission is also not suitable in substance for successfully establishing an equivalent infringement of the patent at issue. According to all equivalence doctrines and equivalence tests of the UPC Agreement member states, an equivalent patent infringement is ruled out if there is no technical-functional equivalence of the replacement means in the sense that the modified means do not essentially fulfil the same function in order to achieve essentially the same effect. If the same function is not used as a basis, at least essentially the same effect is used as a basis (UPC CFI 471/2023 (LD Mannheim), decision of 6 June 2025, headnote 1 – DISH v. AYLO; UPC CFI 363/2024 (LD Paris), decision of 01.08.2025, para. 81 – N.J Diffusion v. Gisela Mayer; UPC 376/2023 (LD Brussels), decision of 17 January 2025, para. 98 – OrthoApnea; see also UPC CFI 479/2025, order of 11 September 2025, p. 23 – Washtower v. Wasombouw). 224. The closure flap with a projection found in the contested embodiments does not meet these requirements. Due to its flexible design, it lacks the necessary stability to allow the cover part to slide over the nose and lock the packaging in a single step.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 55 II. Patent claim 6: 225. Feature 1.2 of patent claim 6 also requires the presence of a retaining projection, which is why there is no infringement of patent claim 6 for the reasons stated above. 226. Furthermore, the claimant has also failed to conclusively demonstrate that the retaining projection and the cooperating opening, as required by feature 3. , are positioned relative to each other during the manufacturing process used to produce the contested embodiments, during the moulding of the egg packaging in a casting mould, in such a way that deformations in the cover part are compensated for during manufacture. F. Ancillary decisions 227. The decision on costs is based on Article 69(1) of the UPC Agreement in conjunction with Rule 118(5) of the RoP. Since the claimant's infringement action was unsuccessful, it must bear the costs in this regard. The decision on costs in relation to the counterclaim for revocation takes into account the fact that patent claim 1 was upheld in a limited form on the basis of auxiliary request 2. In relation to patent claim 6, however, the counterclaim for revocation was unsuccessful. This was also taken into account in the decision on costs. 228. Pursuant to Article 69(1) of the UPC Agreement, costs shall be borne up to a maximum amount determined in accordance with the Rules of Procedure. For a total value in dispute of €1,000,000.00 (action and counterclaim for revocation), the maximum limit for reimbursable representative costs is set at a total of €112,000.00 based on the table adopted by the Administrative Committee on 24 April 2023 on the basis of Rule 152(2) of the RoP.2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 56 DECISION: A. European patent 2 755 901 B1 is declared invalid with effect for all contracting states in which it is in force, insofar as its subject matter extends beyond the following version of the patent claims: 1. A display and distribution package (2) for eggs, said package being formed of a fibrous material, the package (2) comprising: - a bottom part (4) comprising a plurality of egg-receiving compartments (8) having non- planar side surfaces so as to match at least partially the outer contours of an egg, the plurality of compartments (8) being arranged in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a back surface (14), and two substantially planar end surfaces (18), - the cover part (6) being permanently connected to the bottom part (4) by a hinge (16) between the back surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position, - said cover part (6) comprising partial ovoid portions (20) extending outwardly from the two substantially planar end surfaces (18), wherein each of the two substantially planar end surfaces (18) apart from the ovoid portions (20) completely spans the entire end surfaces of the cover part (6), - the bottom part (4) comprising a back side (22), a front side (24), two end sides, and at least one upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4), - the cover part (6) being provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), characterised in that the upwardly extending retention projection (26) has a downwardly and outwardly extending nose (28) for locking engagement with one or more cooperating apertures (30) in the front surface (12) of the cover part (6), said label (42) covering said nose (28) and said apertures (30), said nose (28) working as a hook that hooks onto a lower edge of the said aperture (30), - the nose (28) not extending beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position. 2. A display and distribution package (2) for eggs according to claim 1, wherein the one or more apertures (30) are formed in one or more recesses (32) in the front surface (12) of the cover part (6). 3. A display and distribution package (2) for eggs according to claim 2, wherein the one or more recesses (32) in the front surface (12) of the cover part (6) extends from the upper part of the front surface (12) of the cover part (6) adjacent to the top surface (10) of the cover part (6) down to approximately the middle of the front surface (12) of the cover part (6). 4. A display and distribution package (2) for eggs according to claim 2 or 3, wherein the recesses (32) comprise a bottom wall (34) and two opposing sidewalls (36) extending from the front surface (12) of the cover part (12) to the bottom wall (34).2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 57 5. A display and distribution package (2) for eggs according to any of claims 1 - 4, wherein the cover part (6) comprises a tongue (40) that extends upwardly and inwardly from the lower edge of the one or more apertures (30), said lower edge of the one or more apertures being substantially flush with the front surface (12) of the cover part (6), said tongue (40) being adapted for cooperating with the outwardly and downwardly extending nose (28). 6. A method of manufacturing an egg package (2) by suction moulding of a fibrous material, the package (2) comprising: - a bottom part (4) comprising a plurality of egg receiving compartments (8) having non- planar side surfaces so as to match at least partially the outer contours of an egg, the plurality of compartments (8) being formed in at least two parallel rows, - a cover part (6) comprising a top surface (10), a front surface (12), a back surface (14), and two end surfaces (18), - the cover part (6) being permanently connected to the bottom part (4) by a hinge (16) between the rear surface (14) of the cover part (6) and the bottom part (4) so as to allow the cover part (6) to move between an open position and a closed position, - the bottom part (4) comprising a back side (22), a front side (24), two end sides, and an upwardly extending retention projection (26) extending from the front side (24) of the bottom part (4), the cover part (6) being provided with a label (42) covering the top surface (10) and a substantial part of the front surface (12) of the cover part (6), the method being characterised by the following features of the package: - the upwardly extending retention projection (26) having a downwardly and outwardly extending nose (28) for locking engagement with a cooperating aperture (30) in the front surface (12) of the cover part (6), - the nose (28) not extending beyond the front surface (12) of the cover part (6) when the cover part (6) is in its closed position, and the method being further characterised by the method steps of: - placing said retention projection (26) and cooperating aperture (30) relative to each other during moulding of the egg package (2) in a moulding form, such that deformations in the cover part (6) during manufacture are compensated for, - removing the egg package (2) from the mould, and - drying said egg package (2) in an oven. 7. The method according to claim 6, further comprising the step of after-pressing said egg package (2). 8. The method according to any of claims 6 - 7, further comprising the step of forming a tongue (40) in the cover part (6) extending upwardly and inwardly from the lower edge of2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 58 the one or more apertures (30), said lower edge of the one or more apertures being substantially flush with the front surface (12) of the cover part (6), and said tongue (40) being configured for cooperating with the at least one outwardly and downwardly extending nose (28). In all other respects, the counterclaim for annulment is dismissed. B. The infringement action is dismissed. C. The costs of the infringement action shall be borne by the claimant. The costs of the counterclaim for annulment shall be borne by the defendants in equal shares of 40% each and by the claimant in a share of 20%. The upper limit of the reimbursable representation costs is set at €112,000. D. The amount in dispute in the action and the counterclaim for annulment is set at €500,000 in each case. Düsseldorf, 15 October 2025 NAMES AND SIGNATURES Presiding Judge Thomas Legally qualified judge Dr Schumacher Legally qualified judge Kupecz2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com 59 Technically qualified judge Schenk For the Deputy-Registrar INFORMATION ON APPEALS: Any party whose applications have been rejected in whole or in part may lodge an appeal against this decision with the Court of Appeal within two months of the decision being served (Art. 73(1) UPC Agreement, R. 220.1(a), 224.1(a) RoP). Information on enforcement (Art. 82 UPC Agreement, Art. 37(2) EPGS, R. 118.8, 158.2, 354, 355.4 RoP): A certified copy of the enforceable decision shall be issued by the Deputy-Registrar on the application of the enforcing party, Rule 69 RegR. Instruction to the Register: A certified copy of the decision shall be forwarded to the European Patent Office, the German Patent and Trade Mark Office, the Institut National de la Propriété Industrielle and the Netherlands Patent Office as soon as the decision on the counterclaims for revocation has become final. This decision was announced in open court on 15 October 2025. Presiding Judge Thomas2025-10-15 LD Dusseldorf UPC CFI 115-2025, UPC CFI 377-2024 en-GB.pdfDeepL machine translation provided by www.veron.com

Key Holdings

• The term 'the same invention' in Article 87 EPC is interpreted as meaning that a claimed invention is the same as an earlier application if the skilled person can derive the subject-matter directly and unambiguously from the earlier application as a whole using general technical knowledge, corresponding to the disclosure standard for inadmissible extension/added matter.
• Selecting a material from a limited range of suitable materials known to the skilled person does not usually require special expertise and is not deemed to be an inventive step.
• Patent claim 1 successfully claims priority from EP 11181004 (Prio1), while patent claim 6 does not, but successfully claims priority from PCT/IB2012/054229 (Prio2).
• The prior art cited by the defendant does not anticipate the technical teaching of patent claims 1 and 6, thus novelty is maintained.

Tags

• Added Matter
• Disclosure
• Doctrine of Equivalence
• Infringement
• Inventive Step
• Priority
• Revocation

Related Rules

• Article 8 – Multiple Defendants and Third Parties
• Article 8 – Multiple Defendants and Third Parties
• Article 8 – Multiple Defendants and Third Parties
• Article 5 – Exceptions to General Jurisdiction
• Article 5 – Exceptions to General Jurisdiction
• Article 6 – Defendants Domiciled Outside Member States
• Article 6 – Defendants Domiciled Outside Member States
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 3 – Power of staff of the Registry and a sub-registry to perform functions of the Registry
• Article 3 – Composition of panels
• Article 3 – Composition of panels
• Article 3 – Composition of panels
• Article 8 – Multiple Defendants and Third Parties
• Article 7 – Standard Terms and Languages
• Article 2 – Designation of Central Authority
• Article 7 – Standard Terms and Languages
• Article 7 – Standard Terms and Languages
• Article 7 – Standard Terms and Languages

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